Evans v. Walgreen Co. (813 F. Supp. 2d 897, 2011)

United States District Court for the Western District of Tennessee 2011-08-25

Citations

Full opinion text

ORDER

SAMUEL H. MAYS, JR., District Judge.

Before the Court are the October 15, 2010 Motions for Summary Judgment filed by Defendant Walgreen Company (“Walgreens”) seeking summary judgment on its counterclaim for breach of contract and on Plaintiff Chandra Evans’ (“Evans”) claims arising from Walgreens’ termination of her employment. (See Counter/Plaintiffs Mot. for Summ. J. as to Countercl. for Breach of Contract, ECF No. 44; Def. Walgreen Co.’s Mot. for Summ. J., ECF No. 45.) On November 14, 2010, Evans responded in opposition. (See Pl.’s Resp. and Mem. in Opp’n to Def.’s Mot. for Summ. J., ECF No. 62 (“Pl.’s Resp.”); PL’s Resp. and Mem. in Opp’n to Def.’s Mot. for Summ. J. on Breach of Contract Countercl., ECF No. 63.) Walgreens replied on December 2, 2010. (Def.’s Reply to PL’s Resp. to Def.’s Mot. for Summ. J., ECF No. 70.)

Also before the Court is Evans’ Motion for Summary Judgment on Walgreens’ breach of contract counterclaim filed on October 15, 2010. (See Pl.’s Mot. for Summ. J. Against Def. Walgreens Company, ECF No. 46.) (“Pl.’s Mot. and Statement of Facts”) Walgreens responded in opposition on November 13, 2010. (Def.’s, Counter/Plaintiffs Mem. in Opp’n to PL, Counter/Defendant’s Mot. for Summ. J., ECF No. 61.) Evans replied on November 22, 2010. (Pl.’s Reply to Def.’s/Counterplaintiffs Resp. and Mem. in Opp’n to Pl.’s Mot. for Summ. J. on Pl.’s Breach of Contract Claim, ECF No. 64.)

For the following reasons, Walgreens’ Motion for Summary Judgment on Evans’ claims is GRANTED. Walgreens’ Motion for Summary Judgment on its counterclaim for breach of contract is DENIED. Evans’ Motion for Summary Judgment on Walgreens’ breach of contract claim is DENIED.

I. Background

In July 2004, Evans began working for Walgreens while she was a pharmacy student in North Carolina. (See Def.’s Concise Statement of Undisputed Facts in Supp. of Def.’s Mot. for Summ. J. ¶ 8, ECF No. 45-2 (‘Walgreens’ Statement of Facts”); Pl.’s Resp. and Mem. in Opp’n to Def.’s Mot. for Summ. J. ¶ 8, ECF No. 62-6 (“Evans’ Resp. to Walgreens’ Statement of Facts”).) While still in pharmacy school, Walgreens offered Evans the opportunity to relocate to Memphis, Tennessee, to work in Walgreens’ East Memphis District as a pharmacy intern and as a licensed pharmacist once she had graduated and passed the Tennessee licensing examination. (See Walgreens’ Statement of Facts ¶ 10; Evans’ Resp. to Walgreens’ Statement of Facts ¶ 10.)

According to Walgreens, Evans accepted the offer and was paid $1,500.00 as a relocation incentive payment and $20,000.00 as a sign-on-bonus incentive payment. (See Walgreens’ Statement of Facts ¶¶ 11-12.) As a condition of accepting those payments, Walgreens allegedly required Evans to agree to repay the money if she did not work for Walgreens as a licensed pharmacist in the East Memphis District for three years. (See id. ¶¶ 11, 53, 57-58, 61-63.) Walgreens has attached a copy of the contracts in which Evans allegedly made those promises and electronically checked a box next to the statement “I understand the above terms of the WALGREEN CO. Pharmacy Incentive Program, and agree to abide by such terms.” (See Pharmacy Relocation Incentive Payment, ECF No. 45-6; Pharmacy Sign-on-Bonus Incentive Payment, ECF No. 45-6.)

According to Evans, she did not place a check mark in the box on the contracts stating that she understood and agreed to abide by their terms. (See Evans’ Resp. to Walgreens’ Statement of Facts ¶¶ 11-12, 57-58, 61-63.) She has attached an affidavit in which she states “[t]he first time I saw the alleged written bonus document was during the course of this litigation. I did not sign or acknowledge this agreement.” (Aff. of Chandra Evans ¶ 4, ECF No. 62-1.)

Evans moved to Memphis before her graduation from pharmacy school and worked as an intern at Walgreens until she graduated and passed the Tennessee licensing examination. (See Walgreens’ Statement of Facts ¶ 14; Evans’ Resp. to Walgreens’ Statement of Facts ¶ 14.) After passing the examination, Evans began working as a staff pharmacist in the East Memphis District in January 2007. (See Walgreens’ Statement of Facts ¶ 15; Evans’ Resp. to Walgreens’ Statement of Facts ¶ 15.) Staff pharmacists at Walgreens are responsible for managing the pharmacy’s operations when they are scheduled to work and the pharmacy manager is not on duty. (See Walgreens’ Statement of Facts ¶ 6.) In those situations, staff pharmacists have supervisory authority over pharmacy technicians and cashiers working in the pharmacy. (See id. ¶ 7.) In August 2007, Evans was transferred to a Walgreens store in Cordova. (See id. ¶ 17; Evans’ Resp. to Walgreens’ Statement of Facts ¶ 17.)

On December 13, 2007, Walgreens Loss Prevention Supervisor Steve Walker (“Walker”) received notice from Store Manager Bryan Lindfield (“Lindfield”) of a potential workplace violence incident between Evans and Photo Technician Rafael Renfroe (“Renfroe”). (See Walgreens’ Statement of Facts ¶¶ 18, 76.) The incident had occurred on December 11, 2007. (See id. ¶ 28.) Walker began an investigation. (See id. ¶ 19.) He interviewed Assistant Store Manager Kathi Holland (“Holland”) and Pharmacy Technician Trade Davis (“Davis”), who had witnessed the incident and who voluntarily provided a written statement. (See id. ¶¶ 20, 22.)

Holland reported to Walker that Renfroe had entered the office at the Walgreens store with Evans’ cell phone and that Davis had entered to count money from the cash register. (See id. ¶ 21.) Evans called the office and asked to speak to Renfroe, and Renfroe left the office, leaving Evans’ cell phone on the counter. (See id.) Davis called Evans and told her that Renfroe had left her cell phone on the counter. (See id.) After a few minutes, Evans entered the office looking for Renfroe, and Holland told her that he had left the office. (See id.) Evans paged Renfroe, but he did not answer. (See id.) Evans left the office, and Holland heard her yelling at Renfroe a few minutes later to come into the office. (See id.) Evans and Renfroe entered the office, and Evans began to yell at Renfroe very loudly. (See id.) Evans was approximately one foot away from Renfroe, shaking her finger in his face, when she began screaming as loudly as she could, “do not ever touch my personal belongings again.” (Id.) Evans then told Renfroe, “If you ever take anything of mine again, I will slap the piss out of you” and that “you[’re] lucky you did not take my car keys or you would be in the ground.” (Id.) Renfroe attempted to apologize, but Evans told him to “shut up.” (Id.) Davis gave Walker substantially identical information. (See id. ¶ 23.)

Walker informed Jacob Tibbe (“Tibbe”), Evans’ Pharmacy Supervisor, about his investigation of the incident and the information he had gathered. (See Walgreens’ Statement of Facts ¶ 24.) On December 14, 2007, Walker and Tibbe attempted to interview Evans about the incident, but Evans refused. (See id. ¶25.) In response, Tibbe suspended Evans because she refused to cooperate, contrary to Walgreens’ policy requiring cooperation with investigations conducted by the loss prevention department, and based on the information obtained in the investigation. (See id. ¶¶ 25-26.)

The same day, Walker interviewed Renfroe about the incident, and Renfroe voluntarily provided a written statement. (See id. ¶ 27.) Renfroe reported that he took Evans’ phone without her permission as a joke and that Evans yelled at him in the office, saying that “she was going to slap the piss out of him” and “that if he had taken her car keys he would be in the ground.” (See id. ¶ 28.)

While investigating the incident between Evans and Renfroe, Walker learned that Davis had used the term “wigger” in the presence of Evans and Dondre Halley (“Halley”). (See id. ¶29.) In response, Walker began investigating Davis’ use of the term. (See id. ¶¶ 29-30.) He interviewed Davis, Assistant Store Manager Lora Holbrooks (“Holbrooks”), Halley, and Evans about Davis’ use of the term. (See id. ¶¶ 30-31, 33.)

Halley reported that, on December 11, 2007, Davis described a blind date she had taken and remarked that the male on her date had a lot of tattoos and was a ‘Wigger.” (See id. ¶ 34.) Evans asked what a “Wigger” was and Halley told her it was a term used by the rapper Eminem. (Id.) Evans remarked, “You mean white nigger?” and Halley and Davis said yes. (Id.) Halley did not hear Davis use the term “nigger” during the conversation. (Id.)

Davis provided substantially identical information. (See id. ¶ 32.) According to Davis, she was describing a blind date to Evans and Halley and said that her date was not her type because he had a lot of tattoos. (See id.) She asked Halley, “[D]o you remember my ex-boyfriend,” Halley responded, “[Y]es,” and Davis said that he is a “Wigger.” (Id.) Evans said, “What is that?” and Davis responded that Eminem is a “Wigger.” (Id.) Evans asked, “You mean a white nigger,” and Davis responded that she did not like the word, but the answer was “[Y]es.” (Id.) Davis apologized to Evans and Halley, both of whom are African-American, and said that they laughed about the comment. (Id.) After the conversation, customers’ prescriptions began to fall on the floor off of a conveyor belt, and Davis reported that, as she and Evans began to pick them up, Evans said, “[I]t must have been a Wigger that did it” and they both laughed. (Id.) Sometime later, when Evans was leaving for lunch, she told Davis that she did not like the word “Wigger,” and Davis apologized again. (Id.) On December 13, 2007, Evans said in front of Davis and Holbrooks that Davis should leave for her own good. (See id. ¶ 36.)

On December 17, 2007, Evans was interviewed by Walker and Tibbe and provided a written statement. (Nee id. ¶ 37.) During her interview, Evans admitted to “losing it” with Renfroe and being infuriated by his taking her phone. (Nee id. ¶ 38.) She admitted using profanity and “telling him that she would slap the piss out of him if they were on the street.” (Id.) She also admitted stating that “if he had taken her car keys she would have put him on the ground.” (Id.) Walgreens has filed a copy of Evans’ written statement in which she confirms her conduct. (Statement Given by Chandra M. Evans, ECF No. 45-4.)

Walker and Tibbe also interviewed Evans about the incident with Davis, and Evans provided a written statement largely confirming Halley’s and Davis’ accounts, but adding that Davis mouthed “white nigger” and Evans told Davis in response, “I’m just too tired to go off on you right now.” (See Walgreens’ Statement of Facts ¶¶ 39-40; Statement Given by Chandra M. Evans, ECF No. 45-4.) In her statement, Evans admitted later telling Davis that “you need to stay away from me right now if you know whats [sic] good for you.” (Statement Given by Chandra M. Evans, ECF No. 45-4.)

Walker discussed the facts he had gathered with Tibbe and East Memphis District Manager Dan Piela (“Piela”) and gave them the witnesses’ statements. (See Walgreens’ Statement of Facts ¶ 41.) After reviewing the information Walker provided and consulting with Piela, Tibbe decided to terminate Evans for violating Walgreens’ workplace violence policy. (See id. ¶ 42.) The workplace violence policy states that Walgreens will not tolerate any form of violence, threats of violence, harassment, or intimidation, and that any individual who engages in threatening behavior or violent acts or who makes comments about harming others may be subject to termination of employment. (See id. ¶ 5.) It states that workplace violence may be in the form of verbal, nonverbal, or physical conduct. (See id.) It lists “[threatening, intimidating, coercing, or harassing conduct of a verbal, nonverbal, or physical nature” as an example. (See id.)

Tibbe notified Evans on December 20, 2007, that Walgreens had terminated her employment. (See id. ¶ 43; Evans’ Resp. to Walgreens’ Statement of Facts ¶ 43.) Davis and Renfroe, neither of whom had management level authority, received final written warnings for their roles in the incidents. (See Walgreens’ Statement of Facts ¶¶ 44-45, 76-77, 79.) Renfroe had never taken Evans’ phone before and Davis never made a racially derogatory statement in Evans’ presence other than the “Wigger” comment. (See id. ¶ 82.) After Walgreens terminated Evans’ employment, an email was sent by the district secretary to all staff in the East Memphis District advising them that Evans was no longer employed and should not be provided with an employee discount. (See id. ¶ 47.) Walgreens sends similar emails whenever a pharmacist or manager is no longer employed by Walgreens. (See id. ¶ 48.)

Evans appealed her termination pursuant to Walgreens’ Open Door Policy by writing a letter to Piela. (See id. ¶ 49; Evans’ Resp. to Walgreens’ Statement of Facts ¶ 49.) Under the Open Door Policy, employees may raise any concerns they have with their immediate supervisor, their manager’s supervisor, or the vice president of human resources at the corporate office. (See Walgreens’ Statement of Facts ¶ 4.) Piela and Tibbe considered Evans’ appeal and decided to offer Evans an opportunity to return to work by offering to convert the termination into a final warning if Evans attended an anger management course and relocated to another store in the East Memphis District. (See id. ¶ 50.) Evans rejected their offer. (See id. ¶ 51.)

Evans has submitted a statement of undisputed material facts in support of her summary judgment motion. In July 2004, Evans was hired by Walgreens as a pharmacy intern. (See Pl.’s Mot. and Statement of Facts 5; Def.’s, Counter/Plaintiff s Resp. to Pl., Counter/Defendant’s Statement of “Undisputed Facts” 1, ECF No. 61-1 (‘Walgreens’ Resp. to Pl.’s Statement of Facts”).) According to Evans, Walgreens’ representative Eugene Hoover (“Hoover”) made promises to convince her to move to Memphis. (See Pl.’s Mot. and Statement of Facts 6.) Walgreens disputes this factual assertion and states that Evans has testified that Hoover made no promises to her about her employment in the East Memphis District and that she had no particular reason to move to Memphis. (See Walgreens’ Resp. to Pl.’s Statement of Facts 1-2.) Evans and Walgreens agree that Hoover had the authority to hire Evans, but dispute whether Hoover told Evans that Walgreens would employ her for at least three years because it was paying her a sign-on bonus. (See Pl.’s Mot. and Statement of Facts 6; Walgreens’ Resp. to Pl.’s Statement of Facts 2-3.) Evans and Walgreens also agree that Evans became a licensed pharmacist in January 2007, that she was reclassified as a pharmacist, that Walgreens does not have any written agreements with Evans’ handwritten signature, and that Walgreens terminated Evans’ employment in December 2007. (See Pl.’s Mot. and Statement of Facts 6; Walgreens’ Resp. to Pl.’s Statement of Facts 4, 6.) They disagree about whether Evans signed the sign-on-bonus incentive payment contract and relocation incentive payment contract on which Walgreens bases the summary judgment motion on its breach of contract counterclaim. (See Pl.’s Mot. and Statement of Facts 6; Walgreens’ Resp. to Pl.’s Statement of Facts 5-6.)

On July 31, 2009, Evans filed a complaint against Walgreens with the following counts: (1) violation of 42 U.S.C. § 2000e-2(a)(1), (2) violation of 42 U.S.C. § 2000e-2(a)(2), (3) violation of 42 U.S.C. § 2000e-3(a), (4) violation of 42 U.S.C. § 1981, (5) a request for a declaration that Walgreens’ actions constituted discrimination based on her race and sex and injunctive relief, including reinstatement and back pay, (6) a request for a declaration that she has a contract requiring Walgreens to employ her for at least three years, (7) breach of express contract, (8) breach of implied contract, (9) misrepresentation, (10) defamation, (11) promissory estoppel, (12) negligent infliction of emotional distress, (13) intentional infliction of emotional distress, and (14) a request for attorney’s fees under 42 U.S.C. § 1988. (Original Compl. 6-16, ECF No. 1.) (“Compl.”) In Walgreens’ answer, it asserts a counterclaim for breach of contract based on Evans’ failure to repay her sign-on bonus and relocation incentive payment. (Answer and Counter-Claim 12-14, ECF No. 10.)

II. Jurisdiction and Choice of Law

Because Evans alleges violations of federal law, the Court has subject matter jurisdiction under the general grant of federal question jurisdiction in 28 U.S.C. § 1331. See 28 U.S.C. § 1331; Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 201 (6th Cir.2004). The Court has supplemental jurisdiction over Evans’ state-law claims because they derive from the same nucleus of operative facts as the federal-law claims over which the Court has original jurisdiction and thus form part of the same case or controversy. See 28 U.S.C. § 1367(a); Harper, 392 F.3d at 209. The Court also has supplemental jurisdiction over Walgreens’ counterclaim because it derives from the same nucleus of operative facts as Evans’ claims, forming part of the same case or controversy. See 28 U.S.C. § 1367(a); Davet v. City of Cleveland, 456 F.3d 549, 553-55 (6th Cir.2006); Harper, 392 F.3d at 209; Kaltmam-Glasel v. Dooley, 82 Fed.Appx. 244, 245 (2d Cir.2003); Quinn v. Pipe & Piling Supplies (U.S.A.) Ltd., No. 2:09-cv-161, 2011 WL 672240, at *2 (W.D.Mich. Feb. 18, 2011); Frisby v. Keith D. Weiner & Assocs. Co., LPA 669 F.Supp.2d 863, 872 (N.D.Ohio 2009).

When a federal court exercises supplemental jurisdiction, it is bound to apply the choice of law rules of the forum state. Menuskin v. Williams, 145 F.3d 755, 761 (6th Cir.1998) (citations omitted); accord Girgis v. Countrywide Home Loans, Inc., 733 F.Supp.2d 835, 850-51 (N.D.Ohio 2010) (citations omitted).

For tort claims, Tennessee follows the “most significant relationship” rule, which provides that “the law of the state where the injury occurred will be applied unless some other state has a more significant relationship to the litigation.” Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn.1992). To determine which state has the “most significant relationship,” Tennessee courts consider seven principles:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability, and uniformity of result, and

(g)ease in the determination and application of the law to be applied.

Timoshchuk v. Long of Chattanooga Mercedes-Benz, No. E2008-01562-COA-R3CV, 2009 WL 3230961, at *10 (Tenn.Ct. App. Oct. 8, 2009) (quoting Restatement (Second) of Conflict of Laws § 6 (1971)). When applying these principles, courts must consider four factors: “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, [and] (d) the place where the relationship, if any, between the parties is centered.” Id. at *11 (quoting Restatement (Second) of Conflict of Laws § 145 (1971)). “[T]hese contacts are to be evaluated according to their relative importance with respect to the particular issue.” Id. (quoting Restatement (Second) of Conflict of Laws § 145 (1971)).

The parties assume that Tennessee law governs Evans’ claims sounding in tort. (See, e.g., Mem. in Supp. of Def.’s Mot. for Summ. J. 15-19, ECF No. 45-1 (“Walgreens Mem.”); Pl.’s Resp. 19-20.) The alleged injury occurred in Tennessee because Evans is a Tennessee resident who worked for Walgreens in Tennessee and suffered harm from Walgreens’ acts in Tennessee. The relevant employment relationship between Evans and Walgreens was centered in Tennessee. No state has a more significant relationship to the litigation than Tennessee. No relevant principle weighs against applying Tennessee substantive law. See Timoshchuk, 2009 WL 3230961, at *10. Although Walgreens is not a Tennessee corporation and does not have its principal place of business in Tennessee, the remaining factors Tennessee courts consider favor applying Tennessee law. See Hataway, 830 S.W.2d at 59; Timoshchuk, 2009 WL 3230961, at *11. Therefore, the Court will apply Tennessee substantive law to Evans’ claims sounding in tort.

For contract claims, Tennessee follows the rule of lex loci contractus, which provides that a contract is presumed to be governed by the law of the jurisdiction in which it was executed, absent a contrary intent. Vantage Tech., LLC v. Cross, 17 S.W.3d 637, 650 (Tenn.Ct.App. 1999) (citing Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465, 467 (Tenn. 1973)). “If the parties manifest an intent to instead apply the laws of another jurisdiction, then that intent will be honored provided certain requirements are met”: (1) the choice of law provision must be executed in good faith, (2) the chosen jurisdiction must bear a material connection to the transaction, (3) the basis for the choice of law must be reasonable, and (4) the choice of “another jurisdiction’s law must not be ‘contrary to a fundamental policy of a state having a materially greater interest and whose law would otherwise govern.’ ” Id. (citations omitted).

The parties assume that Tennessee law governs Evans’ breach of contract claims. (See, e.g., Walgreens Mem. 17-19; Pl.’s Resp. 20.) Evans seems to assert, however, that a contract of employment arose from Hoover’s alleged promise, made to her while she was a student in North Carolina, that Walgreens would employ her for at least three years because it was providing her with a sign-on bonus. (See Pl.’s Resp. 20; Pl.’s Mot. and Statement of Facts 6.) If such a promise was made, any resulting contract would have been executed in North Carolina, and Tennessee’s choice of law rules would require applying North Carolina law. See Vantage Tech., 17 S.W.3d at 650. Therefore, the Court will determine whether Evans’ claims sounding in contract can survive Walgreens’ summary judgment motion under Tennessee and North Carolina law.

The parties disagree about which state’s law governs Walgreens’ breach of contract counterclaim. Walgreens argues that Illinois law governs because the relocation incentive payment and sign-on bonus incentive payment contracts between Evans and Walgreens state that they shall be governed by Illinois law. (See Mem. in Supp. of Counter/Plaintiffs Mot. for Summ. J. as to Countercl. for Breach of Contract 5-7, ECF No. 60-1.) Evans argues that she did not sign or acknowledge the agreements and that Tennessee law governs. (See Pl.’s Resp. and Mem. in Opp’n to Def.’s Mot. for Summ. J. on Breach of Contract Countercl. 5-11.) Neither party addresses the significance of any potential agreement formed in North Carolina before Evans moved to Tennessee. The Court will determine whether Walgreens can survive Evans’ motion for summary judgment and is entitled to summary judgment on its breach of contract counterclaim under Tennessee, North Carolina, and Illinois law.

III. Standard of Review

Under Federal Rule of Civil Procedure 56, on motion of a party, the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment “bears the burden of clearly and convincingly establishing the nonexistence of any genuine [dispute] of material fact, and the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion.” Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986); see Fed.R.Civ.P. 56(a). The moving party can meet this burden by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of her case. See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989).

When confronted with a properly-supported motion for summary judgment, the respondent must set forth specific facts showing that there is a genuine dispute for trial. See Fed.R.Civ.P. 56; Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 759 (6th Cir.2010). A genuine dispute for trial exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). One may not oppose a properly supported summary judgment motion by mere reliance on the pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Instead, the nonmovant must present “concrete evidence supporting [her] claims.” Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989) (citations omitted); see Fed.R.Civ.P. 56(c)(1). The district court does not have the duty to search the record for such evidence. See Fed.R.Civ.P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989). The nonmovant has the duty to point out specific evidence in the record that would be sufficient to justify a jury decision in her favor. See Fed.R.Civ.P. 56(c)(1); InterRoyal Corp., 889 F.2d at 111. “Summary judgment is an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action[,] rather than a disfavored procedural shortcut.” FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir.2009) (internal quotation marks and citations omitted).

“Summary judgment in favor of the party with the burden of persuasion ... is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). “When the moving party does not have the burden of proof on the issue, he need show only that the opponent cannot sustain his burden at trial.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986) (quoting William W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). “But where the moving party has the burden — -the plaintiff on a claim for relief or the defendant on an affirmative defense — his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Id. (quoting Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, at 488) (emphasis in original); see also Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir.2008); Arnett v. Myers, 281 F.3d 552, 561 (6th Cir.2002); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir.2001); cf. Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 843 (6th Cir.1997) (“[I]f the moving party will bear the burden of persuasion at trial, then that party must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial.”) (citation omitted); 11 James William Moore, Moore’s Federal Practice § 56.13[1], at 56-162 (3d ed. 2010) (“[I]f the movant has the burden of persuasion on an issue, the movant must make a stronger claim to summary judgment by introducing supporting evidence that would conclusively establish movant’s right to a judgment after trial should nonmovant fail to rebut the evidence.”).

IV. Analysis

Walgreens has moved for summary judgment on all claims in Evans’ Complaint. (See Def. Walgreen Co.’s Mot. for Summ. J. 1-3.) Walgreens has also moved for summary judgment on its breach of contract counterclaim, and Evans has moved for summary judgment on Walgreens’ breach of contract counterclaim. (See Counter/Plaintiff s Mot. for Summ. J. as to Countercl. for Breach of Contract 1-2; Pl.’s Mot. and Statement of Facts 5-15.)

A. Walgreens’ Motion for Summary Judgment on Evans’ Claims

In her complaint, Evans asserts fourteen counts: (1) violation of 42 U.S.C. § 2000e-2(a)(1), (2) violation of 42 U.S.C. § 2000e-2(a)(2), (3) violation of 42 U.S.C. § 2000e-3(a), (4) violation of 42 U.S.C. § 1981, (5) a request for a declaration that Walgreens’ actions constituted discrimination based on her race and sex and that she is entitled to injunctive relief, including reinstatement and back pay, (6) a request for a declaration that she has a contract requiring Walgreens to employ her for at least three years, (7) breach of express contract, (8) breach of implied contract, (9) misrepresentation, (10) defamation, (11) promissory estoppel, (12) negligent infliction of emotional distress, (13) intentional infliction of emotional distress, and (14) a request for attorney’s fees. (See Compl. 6-16.) Walgreens asserts that it is entitled to judgment as a matter of law on all of Evans’ claims. (See Def. Walgreen Co.’s Mot. for Summ. J. 1-3; Walgreens Mem. 1-20.)

1. Violation of 42 U.S.C. § 2000e-2(a)(1)

Evans argues that Walgreens discriminated against her based on her race and sex in terminating her employment. (See Compl. ¶¶ 30-32.) Evans argues that she “is pursuing her race/gender discrimination claims under both a mixed-motive and pretext theory.” (Pl.’s Resp. 12.) She also argues that she was subject to a hostile work environment. (See id. at 18.)

a) Race Discrimination

“Title VII of the Civil Rights Act of 1964 [“Title VII”] prohibits an employer from ‘discriminating] against any individual ... because of such individual’s race, color, religion, sex, or national origin.’ ” Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th Cir.2010) (quoting 42 U.S.C. § 2000e-2(a)(1)) (alterations in original). Under 42 U.S.C. § 2000e-2(a)(1), it is an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

“To defeat a motion for summary judgment in a discrimination case, a plaintiff must adduce direct or circumstantial evidence of discrimination.” Barrett v. Whirlpool Corp., 556 F.3d 502, 514 (6th Cir.2009) (citing DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.2004)); accord Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir.2009) (citing DiCarlo, 358 F.3d at 414); see also Younis, 610 F.3d at 363 (“A Title VII plaintiff may satisfy his burden of establishing such discrimination either by presenting direct evidence of discriminatory actions by the defendant or by showing the existence of circumstantial evidence that creates an inference of discrimination.”).

“Direct evidence is evidence that, if believed, dictates a finding, with no need to draw inferences, that ‘unlawful discrimination was at least a motivating factor in the employer’s actions.’ ” Barrett, 556 F.3d at 515 (quoting Amini v. Oberlin Coll., 440 F.3d 350, 359 (6th Cir.2006)); accord Younis, 610 F.3d at 363 (citing Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (en banc)).

“Circumstantial evidence is ‘proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.’ ” Kyle-Eiland v. Neff, 408 Fed.Appx. 933, 939-40 (6th Cir.2011) (quoting Wexler, 317 F.3d at 570). “Where a plaintiff relies on circumstantial evidence, the McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ] burden-shifting framework applies.” Barrett, 556 F.3d at 515 (citations omitted); accord Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir.2009) (citation omitted). That framework provides for shifting burdens of proof:

The burden is first on the plaintiff to demonstrate a prima facie case of race discrimination; it then shifts to the employer to offer a legitimate, non-diseriminatory explanation for its actions; finally, the burden shifts back to the plaintiff to show pretext — i.e. that the employer’s explanation was fabricated to conceal an illegal motive.

Chen, 580 F.3d at 400 (citation omitted). “Throughout this burden-shifting approach, the plaintiff continues to bear the ultimate burden of proving, by a preponderance of the evidence, the intent to discriminate.” Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir.2006) (citation omitted).

To demonstrate a prima facie case of discrimination based on race, a plaintiff must show that:

(1) he or she was a member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees.

Wright, 455 F.3d at 707 (quoting DiCarlo, 358 F.3d at 415); see also Alexander v. Ohio State Univ. Coll. of Social Work, 429 Fed.Appx. 481, 487 (6th Cir.2011); Thompson v. UHHS Richmond Heights Hosp., Inc., 372 Fed.Appx. 620, 623 (6th Cir.2010).

Evans offers no direct evidence of race discrimination. Therefore, the Court must consider whether she has offered sufficient circumstantial evidence of race discrimination to defeat Walgreens’ summary judgment motion. See Barrett, 556 F.3d at 514.

Evans satisfies the first two elements of her prima facie case of race discrimination because she is African-American (Pl.’s Resp. 3) and her employment was terminated (Aff. of Chandra Evans ¶ 17, ECF No. 62-1). See Wright, 455 F.3d at 707. Based on Evans’ “evidence independent of the nondiscriminatory reason ‘produced’ by the defense as its reason for terminating plaintiff,” Evans can show that her performance met Walgreens’ legitimate expectations at the time of her discharge and thus can satisfy the third element of her prima facie case of race discrimination. See Sokolnicki v. Cingular Wireless, LLC, 331 Fed.Appx. 362, 366 (6th Cir.2009) (quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir.2000)); Vincent v. Brewer Co., 514 F.3d 489, 495 (6th Cir.2007); (Tibbe Dep. 40:3-23, ECF No. 62-2).

Evans states in an affidavit that “[t]he person to whom I spoke who replaced me at the Walnut Grove Store is Caucasian.” (Aff. of Chandra Evans ¶ 24, ECF No. 62-1.) Although that statement is vague, the Court must consider it in the light most favorable to Evans as the non-moving party and draw all reasonable inferences in her favor. See Am. Express Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 688 (6th Cir.2011) (citation omitted). The Magistrate Judge denied Walgreens’ motion to strike that paragraph. (Order Denying Walgreens Company’s Mot. to Strike 12-13, ECF No. 120.) Because a reasonable inference from Evans’ statement is that she has direct knowledge that the person who replaced her is Caucasian, she satisfies the fourth element of her prima facie case of race discrimination. See Wright, 455 F.3d at 707.

Although unnecessary to establish her prima facie case given her evidence that she was replaced by a Caucasian employee, Evans also argues that she has offered evidence that she was treated differently from similarly-situated, non-protected employees. (See Pl.’s Resp. 11-12.) That argument is not well-taken.

“To establish that a non-protected employee is an appropriate comparator, ‘the plaintiff [must] demonstrate that he or she is similarly-situated to the non-protected employee in all relevant respects.’” Dickens v. Interstate Brands Corp., 384 Fed.Appx. 465, 468 (6th Cir.2010) (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir.1998)). “In the disciplinary context, we have held that this requires that the plaintiff and the proposed comparator have engaged in acts of ‘comparable seriousness.’” Id. (quoting Clayton v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir.2002)). To make that determination, courts consider “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 differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.’ ” Id. (quoting Ercegovich, 154 F.3d at 352). “[T]o determine whether two individuals are similarly situated with regard to discipline, we ‘make an independent determination as to the relevancy of a particular aspect of the plaintiffs employment status and that of the [proposed comparable] employee.’ ” Id. at 469 (quoting Ercegovich, 154 F.3d at 352) (alteration in original).

Evans has offered no evidence that other pharmacists or comparable employees outside her protected class engaged in similar incidents of workplace violence or were treated more favorably. She provides statistics comparing the treatment of African-American employees who allegedly engaged in incidents of workplace violence during the relevant period to the treatment of Caucasian employees who did so, but gives no evidence that Tibbe and Piela were involved in those incidents or that those incidents involved employees in similar positions. (See Pl.’s Resp. 11-15.) Evans has not demonstrated that she was treated differently than similarly-situated, non-protected employees and cannot satisfy the fourth element of her prima facie case on that theory. See Wright, 455 F.3d at 707.

Because Evans has demonstrated a prima facie case of race discrimination, the burden shifts to Walgreens to offer a legitimate, non-discriminatory explanation for its actions. See Chen, 580 F.3d at 400. Walgreens claims that it terminated Evans’ employment for violating its workplace violence policy. (See Walgreens Mem. 3-7; Walgreens’ Statement of Facts ¶¶ 42-43.) That reason is a legitimate, non-discriminatory explanation for terminating Evans’ employment. See, e.g., Jones v. Potter, 488 F.3d 397, 401, 406 (6th Cir.2007). Therefore, the burden shifts back to Evans to show pretext. See Chen, 580 F.3d at 400.

“Pretext may be established ‘either directly by persuading the [trier of fact] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’” White v. Baxter Healthcare Corp., 533 F.3d 381, 392 (6th Cir.2008) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “A plaintiff will usually demonstrate pretext by showing that the employer’s stated reason for the adverse employment action either (1) has no basis in fact, (2) was not the actual reason, or (3) is insufficient to explain the employer’s action.” Id. at 393 (citation omitted); accord Alexander, 429 Fed.Appx. at 487; Chen, 580 F.3d at 400; Jones, 488 F.3d at 406. “However, the plaintiff may also demonstrate pretext by offering evidence which challenges the reasonableness of the employer’s decision ‘to the extent that such an inquiry sheds light on whether the employer’s proffered reason for the employment action was its actual motivation.’ ” White, 533 F.3d at 393 (quoting Wexler, 317 F.3d at 576).

Evans cannot establish pretext. She has offered no evidence that Walgreens’ proffered reason for terminating her employment has no basis in fact, was not the actual reason for her termination, or is insufficient to explain Walgreens’ action. She has also offered no evidence suggesting that Walgreens’ proffered reason for terminating her employment was not its actual motivation.

Evans was interviewed by Walker and Tibbe and provided a written statement. (See Walgreens’ Statement of Facts ¶ 37.) She admitted to “losing it” with Renfroe and being infuriated by his taking her phone. (See id. ¶ 38.) She admitted using profanity and “telling him that she would slap the piss out of him if they were on the street.” (Id.) She also admitted stating that “if he had taken her car keys she would have put him on the ground.” (Id.) Walgreens has filed a copy of Evans’ statement in which she confirmed those statements and wrote that they were “accurate and true to the best of my knowledge.” (Statement Given by Chandra M. Evans, ECF No. 45-4.)

Walgreens’ workplace violence policy provides that any employee who engages in threatening behavior or violent acts or who makes comments about harming others may be subject to termination of employment. (See Walgreens’ Statement of Facts ¶ 5.) It lists “[t]hreatening, intimidating, coercing, or harassing conduct of a verbal, nonverbal, or physical nature” as examples of conduct violating the policy. (Id.) Evans cannot claim that Walgreens’ proffered reason for terminating her employment has no basis in fact. She also cannot demonstrate that Walgreens did not have an honestly-held belief that she violated the workplace violence policy or that Walgreens did not make a reasonably informed and considered decision based on a thorough investigation before terminating Evans’ employment for violating that policy. See Allen v. Highlands Hosp. Corp., 545 F.3d 387, 398 (6th Cir.2008); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir.2007).

Much of the evidence Evans offers to demonstrate pretext is irrelevant. No reasonable jury could conclude that a discriminatory reason motivated Walgreens’ actions or that Walgreens’ explanation of why it terminated her employment is unworthy of credence based on Evans’ evidence that she had never been accused of workplace violence before the incident with Renfroe, Renfroe is taller and bigger, Renfroe did not testify that he felt threatened, Walgreens allegedly did not consider her physical stature relative to Renfroe in determining that Evans’ conduct was threatening, and Walgreens suspended her before giving her an opportunity to present her version of the incident. (See Pl.’s Resp. 12-13.) That all of the evidence Walgreens allegedly considered in deciding to terminate Evans came from Walgreens employees does not matter. It also does not matter that Tibbe did not terminate the employment of Renfroe and Davis, who were not similarly-situated to Evans, or that other employees have alleged that Walgreens committed race and gender discrimination and retaliation between 2004 and 2008. Without more detail, it does not matter that Lindfield allegedly “did not care for Plaintiff and was doing what he could to get her out of the store” allegedly because the store is in a predominantly Caucasian neighborhood. (See id. at 11.)

Evans’ alleged comparator evidence is also insufficient to demonstrate pretext. (See id. 11-14.) Her evidence does not show that the employees were similarly situated to Evans or were disciplined under similar circumstances. Evans offers no evidence that Tibbe and Piela were involved in the incidents she cites or that any of those incidents involved a pharmacist.

Taken as a whole, no reasonable jury could find that Evans can establish that Walgreens’ reason for terminating her employment is pretext. Evans has not raised a genuine issue of material fact about whether Walgreens’ proffered legitimate explanation is pretext. Therefore, Walgreens is entitled to summary judgment on Evans’ race discrimination claim under 42 U.S.C. § 2000e-2(a)(1). See Chen, 580 F.3d at 402; Abdulnour v. Campbell Soup Supply Co., 502 F.3d 496, 504 (6th Cir.2007).

b) Sex Discrimination

“A plaintiff can establish a claim of sex discrimination under Title VII by producing either direct or circumstantial evidence of discrimination.” White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 238 (6th Cir.2005) (citation omitted). When a plaintiff proceeds using circumstantial evidence, the McDonnell Douglas framework applies. Id. (citation omitted).

To demonstrate a prima facie case of sex discrimination, a plaintiff must show that “(1) she is a member of a protected group; (2) she was subjected to an adverse employment decision; (3) she was qualified for the position; and (4) she was replaced by a person outside the protected class, or a similarly situated non-protected employee was treated more favorably.” Corell v. CSX Transp., Inc., 378 Fed.Appx. 496, 501 (6th Cir.2010) (citing Peltier v. United States, 388 F.3d 984, 987 (6th Cir.2004); see also Vincent, 514 F.3d at 494 (citing Peltier, 388 F.3d at 987).

Evans has no direct evidence of sex discrimination and proceeds using circumstantial evidence. Evans satisfies the first and second element because she is a woman and her employment was terminated. See Vincent, 514 F.3d at 494-95; Warfield v. Lebanon Corr. Inst., 181 F.3d 723, 729 (6th Cir.1999). Evans has offered evidence sufficient to satisfy the third element given Tibbe’s testimony that Evans met all expectations. See Vincent, 514 F.3d at 495, (Tibbe Dep. 40:3-23, ECF No. 62-2). Her evidence does not establish that a similarly-situated, non-protected employee was treated more favorably. She does not, inter alia, offer any evidence that a male employee employed in a similar position engaged in comparable conduct, or that Tibbe and Piela were involved in a decision to discipline such an employee. Renfroe is not an appropriate comparator because he did not threaten another employee with physical violence and he did not have management level authority. Evans is not similarly situated to Renfroe in all relevant respects. See Dickens, 384 Fed.Appx. at 468-69. Therefore, Evans has no evidence that a similarly-situated, non-protected employee was treated more favorably.

Evans also has no evidence that she was replaced by a person outside her protected class. Her affidavit states that “[t]he person to whom I spoke who replaced me at the Walnut Grove Store is Caucasian.” (Aff. of Chandra Evans ¶ 24, ECF No. 62-1.) It does not state that the person who replaced her is male. Evans has not directed the Court to any evidence that the person who replaced her was male. Therefore, Evans cannot establish a prima facie case of sex discrimination, and Walgreens is entitled to summary judgment. See Corell, 378 Fed.Appx. at 497, 501-03.

Evans’ sex discrimination claim also fails because she cannot establish pretext. Walgreens has met its burden of offering a legitimate, non-diseriminatory explanation for terminating Evans’ employment: her violation of the workplace violence policy. (See Walgreens Mem. 3-7; Walgreens’ Statement of Facts ¶¶ 42-43.) As discussed above, Evans has no evidence that Walgreens’ explanation is pretext. Taken as a whole, no reasonable jury could find that Evans can establish that Walgreens’ reason for terminating her employment is pretext. Evans has not raised a genuine issue of material fact about whether Walgreens’ proffered legitimate explanation is pretext. Walgreens is entitled to summary judgment on Evans’ sex discrimination claim under 42 U.S.C. § 2000e-2(a)(1). See Corell, 378 Fed.Appx. at 497, 503-05; Novotny v. Elsevier, 291 Fed.Appx. 698, 704 (6th Cir.2008).

c) Mixed Motive

“[T]he McDonnell Douglas/Burdine burden-shifting framework does not apply to the summary judgment analysis of Title VII mixed-motive claims.” See White, 533 F.3d at 400. “[T]o survive a defendant’s motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) ‘race, color, religion, sex, or national origin was a motivating factor’ for the defendant’s adverse employment action.’ ” Id. (quoting 42 U.S.C. § 2000e-2(m)). “This burden of producing some evidence in support of a mixed-motive claim is not onerous and should preclude sending the case to the jury only where the record is devoid of evidence that could reasonably be construed to support the plaintiffs claim.” Id.

“Moreover, as it is irrelevant, for purposes of a summary judgment determination, whether the plaintiff has presented direct or circumstantial evidence in support of the mixed-motive claim, ... we direct that this summary judgment analysis just described, rather than the McDonnell Douglas/Burdine burden-shifting framework, be applied in all Title VII mixed-motive cases regardless of the type of proof presented by the plaintiff.” Id. (internal citation omitted). Therefore, “[t]he only question that a court need ask in determining whether the plaintiff is entitled to submit his claim to a jury in such cases is whether the plaintiff has presented ‘sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race, color, religion, sex, or national origin was a motivating factor for’ the defendant’s adverse employment decision.” Id. at 401 (quoting Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)). “The ‘ultimate question’ in a mixed-motive analysis is simply ‘whether there are any genuine issues of material fact concerning the defendant’s motivation for its adverse employment decision, and, if none are present, whether the law ... supports a judgment in favor of the moving party on the basis of the undisputed facts.’ ” Spees v. James Marine, Inc., 617 F.3d 380, 390 (6th Cir.2010) (quoting White, 533 F.3d at 402).

Here, Evans has produced evidence sufficient to convince a jury that Walgreens took an adverse employment action against her because Walgreens terminated her employment. See Wright, 455 F.3d at 707; (Aff. of Chandra Evans ¶ 17, ECF No. 62-1). However, she has not produced evidence sufficient to convince a jury that her race or sex was a motivating factor for any of Walgreens’ actions. She offers no evidence that her race or sex was a motivating factor in Walker’s investigation; Walker, Tibbe, and Piela’s discussions; or Tibbe’s decision to terminate her employment. Evans’ conclusory argument that Lindfield “did not care for Plaintiff and was doing what he could to get her out of the store” allegedly because the store is in a predominantly Caucasian neighborhood is not sufficient because she offers no evidence that Lindfield was involved in the decision to terminate her employment or that her race or sex was a reason Lindfield disliked her. (See Pl.’s Resp. 11.)

Evans’ alleged comparator evidence is not sufficient because she gives no indication of the context in which other employees were disciplined, the decisionmakers responsible for the decisions to discipline them, or the status and conduct of the disciplined employees. Evans has not produced sufficient evidence for a reasonable jury to conclude that the alleged comparators are similarly situated. The treatment of Renfroe and Davis cannot create a jury issue about Walgreens’ reasons for terminating Evans’ employment because they are not similarly situated to her in that their conduct and status as non-pharmacists and employees without management-level authority are dissimilar to Evans’ conduct and status. Because Davis is not alleged to have had any role in the decision to terminate Evans’ employment, Davis’ racially insensitive remark is not evidence of Walgreens’ bias. Evans has offered no evidence that Walgreens’ investigation of her alleged misconduct was anything less than thorough and correct. She admitted to “losing it” with Renfroe in her interview with Walker and Tibbe and her written statement, as well as using profanity, “telling him that she would slap the piss out of him if they were on the street,” stating that “if he had taken her car keys she would have put him on the ground,” and later telling Davis that “you need to stay away from me right now if you know whats [sic] good for you.” (See Walgreens’ Statement of Facts ¶¶ 37-38; Statement Given by Chandra M. Evans, ECF No. 45-4.)

Taken as a whole, the record is devoid of evidence that could reasonably be construed to support Evans’ claim. Evans had not presented sufficient evidence for a reasonable jury to conclude that her race or sex was a motivating factor for Walgreens’ actions. No genuine issue of material fact exists as to Walgreens’ motivation for its adverse employment decision. The law supports a judgment in Walgreens’ favor based on the undisputed facts. Evans’ mixed-motive claim must fail, and Walgreens is entitled to summary judgment on Evans’ race and sex discrimination claims. See Spees, 617 F.3d at 390; White, 533 F.3d at 400-01; see also Graham v. Best Buy Stores, L.P., 298 Fed.Appx. 487, 495 (6th Cir.2008); Lindsey v. Whirlpool Corp., 295 Fed.Appx. 758, 768 (6th Cir.2008); Erkins v. Potter, No. 1:09CV059, 2010 WL 5670454, at *3-5 (S.D.Ohio Nov. 15, 2010); Hicks v. Concorde Career Coll., 695 F.Supp.2d 779, 794-95 (W.D.Tenn.2010).

d) Hostile Work Environment

To prove a hostile work environment claim under Title VII, a plaintiff “needs to show: (1) she was a member of a protected class; (2) she was subjected to unwelcomed harassment; (3) the harassment was based on sex or race; (4) the harassment created a hostile work environment; and (5) employer liability.” Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 500 (6th Cir.2009) (citation omitted).

Evans is a member of a protected class because she is African-American and female. See Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir.2009); Campbell v. CCL Custom Mfg., Inc., No. 03-2789B, 2006 WL 222814, at *5 (W.D.Tenn. Jan. 30, 2006). Assuming without deciding that she can establish the second, third, and fifth requirements, Evans cannot demonstrate that any harassment created a hostile work environment. The basis for her hostile work environment claim is as follows:

Here, Plaintiff had already met with Steve Walker to report conduct involving store manager Mr. Mascari, who had also been accused of racial and sexual discrimination against another Walgreen[s] employee, assistant manager Ms. Cunningham. When she reported the conduct to Mr. Walker, he initially had Mascari present in the room as she was trying to report Mascari’s discriminatory conduct. Plaintiff discovered later that Walker chose not to investigate the allegations regarding Mascari. Walgreenfs] was also aware of the harassment of Plaintiff by store manager Lind-field, who did not want Plaintiff in his store and did things to try to get rid of her. Walker and others knew about the hostile environment, but did nothing about it.

(Pl.’s Resp. 19.) Evans also seems to base her claim on Lindfield’s being rude to her and playing pranks that she did not like, Mascari’s being rude to her on one specific occasion, Davis’ comments in her presence, Renfroe’s taking her cellular phone, and a pharmacy technician’s once gesturing with her middle finger toward her. (See Walgreens’ Statement of Facts ¶ 64; Evans’ Resp. to Walgreens’ Statement of Facts ¶ 64.)

“[H]ostile-work-environment claims ‘involvef ] repeated conduct’ and require the plaintiff to demonstrate that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe and pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 994 (6th Cir.2009) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-16, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). “Both an objective and a subjective test must be met: the conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive and the victim must subjectively regard that environment as abusive.” Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir.2000) (citation omitted); see also Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir.2008). “Appropriate factors for the court to consider when determining whether conduct is severe or pervasive enough to constitute a hostile work environment ‘include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Bourini v. Bridgestone/Firestone N. Am. Tire, LLC, 136 Fed.Appx. 747, 751 (6th Cir.2005) (quoting Bowman, 220 F.3d at 463). “The Supreme Court has consistently held that ‘simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.’ ” Id. (quoting Newman v. Fed. Express Corp., 266 F.3d 401, 405 (6th Cir.2001)).

The evidence Evans presents “fail[s] to raise a triable issue of fact that [Walgreens] was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe and pervasive to alter the conditions of [Evans’] employment and create an abusive working environment.” Love v. Electric Power Bd. of Chattanooga, EPB, 392 Fed.Appx. 405, 409 (6th Cir.2010). The allegedly discriminatory conduct was infrequent, not severe, not physically threatening or humiliating, and consists in part of an offensive utterance on one occasion. It did not unreasonably interfere with Evans’ work performance. A reasonable jury could not find that Evans was subjected to a hostile work environment. See, e.g., Barrett, 556 F.3d at 518 (“Upon consideration of the totality of the circumstances, the single comment from [a co-worker], the perceived diversion of desirable work by [a manager], and the receipt of the ‘cold shoulder’ from a few coworkers is insufficient evidence of severe or pervasive harassment to allow a reasonable jury to find that [an employee] was subjected to a hostile work environment.”). Therefore, Walgreens is entitled to summary judgment on Evans’ hostile work environment claim. See id.; Ladd, 552 F.3d at 500-02.

2. Violation of 42 U.S.C. § 2000e-2(a)(2)

Under 42 U.S.C. § 2000e-2(a)(2), it is an unlawful employment practice for an employer “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(2).

Evans has not produced sufficient evidence for a reasonable jury to conclude that Walgreens violated 42 U.S.C. § 2000e-2(a)(2). No evidence suggests that Walgreens’ actions limited, segregated, or classified her so as to deprive her of employment opportunities or adversely affect her status as an employee because of her race or sex. No evidence suggests that Walgreens’ actions tended to deprive her of employment opportunities or adversely affected her status as an employee because of her race or sex.

Although Walgreens terminated her employment, as discussed above, Evans has not offered sufficient evidence to create a genuine issue for trial about whether that decision was based on or motivated by her race or sex. To the extent Evans alleges that Walgreens limited and deprived her of employment opportunities and adversely affected her status as an employee by offering to reinstate her if she attended an anger management course and relocated to another store in the East Memphis District (see Compl. ¶ 35), her argument is not well-taken. She offers no evidence that Walgreens treated similarly situated persons who were terminated differently than it treated her or considered her race or sex. Therefore, Walgreens is entitled to summary judgment on Evans’ claim under 42 U.S.C. § 2000e-2(a)(2). See Pucci, 628 F.3d at 759.

3. Violation of 42 U.S.C. § 2000e-3(a)

“Title VII prohibits retaliation against an employee ‘because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or h