               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0729n.06

                                       Case No. 14-3090

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                             FILED
                                                                       Sep 17, 2014
CATHERINE WILSON,                                  )
                                                                   DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellant,                        )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE SOUTHERN DISTRICT OF
CHIPOTLE MEXICAN GRILL, INC.,                      )      OHIO
                                                   )
       Defendant-Appellee.                         )
                                                   )
                                                   )

       BEFORE: SUTTON and KETHLEDGE, Circuit Judges; ROSENTHAL, District Judge.*

       SUTTON, Circuit Judge. Catherine Wilson claims that Chipotle fired her based on her

race and gender. The district court rejected the claim as a matter of law and granted Chipotle’s

motion for summary judgment. We affirm.

       Wilson, age twenty-five and African American, began working for Chipotle in July 2011

as a part-time crewmember at its Clifton restaurant near the University of Cincinnati. She was

not a strong performer. Her reviews listed her as a “low performer,” and she was counseled

about her “attitude” at work. R. 17-5 at 5–7; R. 17-6 at 22; R. 17-7 at 8 (Page ID # 146–48, 188,

197). She apparently worked with several other not-very-strong performers, as the Clifton store

had an assortment of problems. In October 2011, the company brought in new management to

*
 The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
Case No. 14-3090
Wilson v. Chipotle Mexican Grill, Inc.
try to right the ship, hiring Russell Behrman (who is white) to become the new general manager.

On October 17, Wilson asked Behrman for thirteen days off in November, ten of which were

needed to work at Walt Disney World to maintain her status as a seasonal employee with the

Florida amusement park. Behrman was skeptical, telling Wilson that he did not think his

superiors would allow the request given the store’s poor performance. The pair argued, with

Wilson insisting she needed the time off and Behrman insisting that the store’s (and her) poor

performance would get in the way. After the argument, Behrman interpreted Wilson’s insistence

on taking the time off anyway, whether allowed or not, as meaning she had quit. Later that day,

Behrman took Wilson off the work schedule.

       That apparently was news to Wilson. She returned to Chipotle the next day, when

Berhman was not there, and worked part of her scheduled shift. She came back to work again on

October 22. This time Behrman was there, and this time she noticed that her name had been

removed from the work schedule. She asked Behrman what was going on. Behrman responded

that she had quit on October 17. An argument followed. Wilson became “very combative,”

“emotional” and loud in a nine- to twelve-minute argument with Behrman, all in front of

customers. R. 17-4 at 3–4; R. 17-5 at 21–23; R. 17-19 at 1–2 (Page ID # 119–20, 162–164, 270–

71). As the conversation wound down, Wilson threatened to complain to management, after

which Behrman allegedly said no one would believe a “black dyke bitch.” R. 17-5 at 22 (Page

ID # 163). Even though this remark allegedly took place at the end of the argument in front of

many other individuals, Wilson has identified no other person who heard it. Many witnesses by

contrast heard Wilson’s harangue against Behrman. After Wilson left the restaurant, she called

Chipotle District Manager Herman Mobbs, an African American, and complained about what

had happened. Mobbs investigated the incident and concluded that Wilson should not get her job



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Wilson v. Chipotle Mexican Grill, Inc.
back due to her loud and disrespectful conduct on October 22. After interviewing many other

individuals as well, Mobbs found no misconduct by Behrman.

       Wilson filed this lawsuit in January 2012, claiming race and gender discrimination under

Title VII and state law. See 42 U.S.C. § 2000e-2(a)(1); Ohio Rev. Code § 4112.02(A). After

discovery, the district court granted Chipotle’s motion for summary judgment.

       We give fresh review to the summary judgment decision of the district court. Wexler v.

White’s Fine Furniture, Inc., 317 F.3d 564, 569 (6th Cir. 2003) (en banc). The question there,

and here, is whether Chipotle is entitled to judgment as a matter of law because “no genuine

dispute as to any material fact” stands in the way, even after giving Wilson (the nonmovant) the

benefit of all reasonable inferences from the record. Fed. R. Civ. P. 56(a); see Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).

       On appeal, Wilson does not claim to have any direct evidence that Chipotle fired her

based on race or gender. She instead claims that indirect or circumstantial evidence shows as

much. In this context, we employ the familiar McDonnell Douglas burden-shifting framework,

see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–06 (1973), which applies equally to

Title VII and Ohio’s counterpart employment-discrimination law. See Plumbers & Steamfitters

Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 421 N.E.2d 128, 131 (Ohio 1981).

       To survive summary judgment under this framework, Wilson initially must show that she

(1) is a member of a protected class, (2) was qualified for the job, (3) suffered an adverse

employment action, and (4) was replaced by someone outside the protected class or was treated

differently than similarly situated, nonprotected employees.      See Serrano v. Cintas Corp.,

699 F.3d 884, 892–93 (6th Cir. 2012). If the plaintiff makes out this prima facie case, the burden

shifts to the employer to offer evidence of a nondiscriminatory reason for its action. Id. at 893.



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Wilson v. Chipotle Mexican Grill, Inc.
If the employer offers such evidence, the burden shifts back to the plaintiff to show that this

alleged reason for the adverse employment action was not the real reason but a pretextual one

and that the employer fired the employee based on race or gender. Id.

       The district court concluded as an initial matter that Wilson failed to establish a prima

facie case of discrimination because no adverse employment action occurred and because she

was not replaced by someone outside the protected class or otherwise treated differently than

like-situated nonprotected employees. We cannot agree with the first point but accept the

second. As to the first point, it is no doubt the case that an employee who voluntarily resigns

from a job may not bring a claim under Title VII (or its Ohio counterpart) because it is the

employee’s, not the employer’s, action that generated the departure. Nor need an employee utter

the words “I quit” before falling into this camp. See Nance v. Goodyear Tire & Rubber Co.,

527 F.3d 539, 555 (6th Cir. 2008); Hammon v. DHL Airways, Inc., 165 F.3d 441, 448–49 (6th

Cir. 1999). Yet when we give all reasonable inferences to Wilson’s evidence, a genuine factual

dispute remains. Several pieces of evidence support Wilson’s position that she did not quit on

October 17. The most obvious comes from her deposition, in which she denies saying she was

quitting or would quit. She also denies giving an ultimatum to Behrman about her time-off

request. Her actions matched her words. She returned to work the next day, and Behrman’s

fellow manager Michael Brent Moore, who witnessed the prior day’s conversation, was the

manager on duty and never told her to leave. This evidence suffices to create a genuine factual

dispute over whether Wilson left the job voluntarily.

       While we disagree with the district court’s contrary conclusion, we must acknowledge

one intuition that supports it. Wilson, true enough, has created a triable issue of fact over

whether she quit on October 17. But the same is not true over whether she would have stayed on



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Wilson v. Chipotle Mexican Grill, Inc.
the job much longer. When Wilson spoke to Mobbs after the incident on October 22, she

insisted that she would be taking time off in November to work at Disney. Nowhere in the

record does she deny saying this to Mobbs. Yet neither at that time nor earlier did she receive

permission to take the time off. The die in short was cast, and by mid-November Wilson would

be leaving the job one way or another—either because she voluntarily quit by taking the time off

and never returning or because the company would not accept her back after she insisted on

taking an extended and unpermitted absence from the job. This problem diminishes her claim

considerably.

       The district court’s second explanation for concluding that Wilson failed to establish a

prima facie case eliminates her claim completely. Wilson offered no evidence that Chipotle

replaced her with white or male employees. To the contrary, Wilson’s part-time slot was picked

up by three African-American females and one African-American male. The Clifton branch

work force was 75% African American during the relevant period, and Wilson offers no

evidence that this changed at the time. Nor has Wilson shown that Chipotle treated “similarly

situated, nonprotected employees . . . more favorably.” Clayton v. Meijer, Inc., 281 F.3d 605,

610 (6th Cir. 2002); see Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995).

Wilson makes no attempt to point to a white or male employee who received time off

comparable to her request or otherwise insisted on taking such time. Wilson makes no attempt to

point to a white or male employee who engaged in a nine- to twelve-minute shouting match with

a manager in front of customers and yet remained employed. The only thing the record shows is

to the contrary. After Chipotle discovered that Behrman made a disparaging remark to another

employee, he too was fired. Having failed to identify any relevant comparator, it follows that




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Wilson v. Chipotle Mexican Grill, Inc.
Wilson cannot shoulder her burden of identifying anyone who, like her, was a “low performer”

and who had already been counseled about subpar job performance.

       That leaves the remark Behrman allegedly made to Wilson—that she was a “black dyke

bitch”—as she left the restaurant on October 22 and threatened to complain about Behrman.

This may well show that Wilson and Behrman were both intemperate. But it does not by itself

establish a cognizable claim of employment discrimination. Wilson did not bring a hostile-work-

environment claim but an improper-firing claim. By the time of the comment, the predicates for

firing Wilson had already taken place: her combative and public argument with Behrman on

October 22 arising from her continued insistence on taking ten days off in November. Because

Wilson has identified no other statements of this ilk, this stray remark does not suffice by itself to

show the differential treatment required to establish her case. See Rowan v. Lockheed Martin

Energy Sys., Inc., 360 F.3d 544, 549 (6th Cir. 2004).

       That leaves the last ground for the district court’s decision. Even if Wilson could make

out a prima facie case of discrimination, the court concluded that Chipotle had legitimate reasons

for firing her that were not pretextual. We agree. We break no new ground in concluding that a

company may fire someone who admittedly was a low performer and who admittedly lost her

cool in front of customers. Wilson acknowledges that she was “very combative” and publicly

lost her temper for an extended period of time on October 22. She offers no nonprotected

comparators who were similarly situated to her, who did the same things, yet were allowed to

stay on. This too suffices to reject her claims as a matter of law.

       For these reasons, we affirm.




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