Jesse Ortiz v. Hershey Company

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0708n.06
Case No. 13-6466
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JESSE ORTIZ,
Plaintiff-Appellant,
v.
HERSHEY COMPANY,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
TENNESSEE
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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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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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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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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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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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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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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