Jones v. St. Jude Medical S.C., Inc. (823 F. Supp. 2d 699, 2011)

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

Plaintiff Chyrianne H. Jones (“Plaintiff’ or “Ms. Jones”) brings this employment action against Defendants St. Jude Medical S.C., Inc. (“St. Jude”) and Michael Moore. Plaintiff alleges that she suffered various adverse employment actions and retaliation in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and Ohio Revised Code § 4112.02, including disparate treatment and hostile work environment discrimination based on race and sex, retaliation for engaging in protected conduct, and wage discrimination.

This matter is before the Court on Defendants’ Motion for Summary Judgment (Doc. 61). Plaintiff has responded and this matter is now ripe for review. For the reasons that follow, the Court GRANTS Defendants’ Motion for Summary Judgment.

I. FACTUAL BACKGROUND

Plaintiff Chyrianne H. Jones is an African-American female who was employed with Defendant St. Jude from July 22, 2005 until her termination on December 17, 2009. Defendant St. Jude is a Minnesota corporation that sells medical devices to both hospitals and physicians. St. Jude’s medical products include cardiac rhythm management (“CRM”) devices such as pacemakers and defibrillators, internal cardiac devices (“ICDs”), and biventricular devices (“BiVs”).

Plaintiff was hired on July 22, 2005, as a CRM sales representative in Jacksonville, Florida, and she worked there for approximately two years. (Jones Dep. at 49). Plaintiffs sales territory in Jacksonville consisted of one high volume physician. During that two-year period, Plaintiff received acclaim for her outstanding sales performance. St. Jude designated her as a member of its Circle of Excellence for her outstanding sales and gave her its Rookie of the Year Award in recognition of her sales achievements. (Valle Dep. at 104; Pl.’s Memo, in Opp. Ex. 1). Jones’ Regional Sales Manager (“RSM”) in Florida considered her an excellent sales representative, rating her “4” or, “exceeds expectations,” on her 2006 performance appraisal, her last appraisal immediately before her transfer to Ohio. (Suppes Dep. at 86-87; Pl.’s Memo, in Opp. Ex. 2).

A. Establishment of St. Jude’s Sales Force in Columbus

Prior to February 2007, St. Jude did not employ a direct CRM sales force in its Columbus, Ohio region. Instead, it contracted with an independent entity, Ohio Pacesetter Association (“Pacesetter”), to sell and service St. Jude’s CRM products in Columbus. (Moore Dep. at 48). Effective February 2007, St. Jude bought out its contract with Pacesetter with the intent to replace the independent contractor’s sales force with its own direct CRM sales force. At the time St. Jude terminated the Pacesetter contract, it had not yet hired any direct sales representatives for the region. Consequently, all of St. Jude’s sales activities in the region ceased. Louis Major, III, (“Major”) a black, African-American male, and the newly designated regional sales manager in Columbus, became solely responsible for servicing all of St. Jude’s hospital and individual physician accounts until sales representatives were hired. Major reported directly to Michael Moore, a white male, who was the Area Vice President of Sales for the Columbus region. As an RSM, Major was tasked with identifying and recruiting direct sales representatives for Columbus. (Moore Dep. at 72). Major presented his business plan for the region to Moore; the plan identified the sales representatives, including Plaintiff, whom he intended to hire and the sales territories each would be assigned. (Major Dep. at 52-53).

Despite Major’s plan, Moore hired the first three sales representatives for Columbus: Tim Rooney (“Rooney”); Jim McQuarrie (“McQuarrie”); and, Doug Woyton (“Woyton”)-all white males. (Major Dep. at 113, 115-18, 127-30). None of these men were included in Major’s business plan for the region. Moore also directly negotiated their employment contracts, agreeing to very substantial guarantees, commission rates, and very favorable sales territories for each. (Moore Dep. at 80; Major Dep. at 126, 128-32). Typically, a sales representative’s guarantee is equivalent to the representative’s prior year’s earnings as reflected by his W-2s. (Ellen Dep. at 68; Major Dep. at 113; Suppes Dep. at 39).

Major then hired two additional sales representatives, Paul Giacobbe (“Giacobbe”) and Plaintiff Jones. (Major Dep. at 137). Major had recommended to Moore that Jones’ guarantee be set in an amount equivalent to her W-2s from the preceding year, $320,000. (Major Dep. at 148). After Moore interviewed Jones, Moore reduced the guarantee offered to Jones from $320,000 down to $210,000. (Major Dep. at 149). According to Major, he never heard of a sales representative, whether as intra-company transfer or a new hire, being paid a guarantee less than her prior year’s W-2 earnings. (Major Dep. at 149). Plaintiffs contract stated: “For the first year of this Agreement (the ‘Total Guarantee Period”), Employee [Plaintiff] will receive the greater of the actual compensation (i.e., salary plus commissions) to which Employee would be entitled, or the sum of $210,000.00, whichever is greater, prorated on a monthly basis.” (Jones Dep. Ex. 4). This equates to a monthly minimum compensation guarantee of $17,500.00. Plaintiff, however, outperformed her contract, so she was not subject to a wage ceiling or salary cap-meaning no limit existed as to what she could have earned.

Unlike most Sales Representatives, Plaintiffs guarantee was paid with no negative repercussions, meaning that if she failed to sell enough implant devices to “justify” her compensation guarantee (i.e., to earn commissions in excess of the guarantee), she was not required to pay back the extra money received at the end of the guarantee period. (Jones Dep. at 72, Ex. 4, pp. 10-11) (“[I]f at the end of the Total Guarantee Period Employee’s earned commissions are short of the guarantee (i.e., a negative balance), SJMSC will forgive the negative balance.”).

Plaintiff was assigned a primary territory consisting of four electrophysiologists (“EPs”) at Riverside (Territory A in her contract) and a number of smaller, low voltage accounts in outlying areas as well as an additional EP, Dr. Noble (Territory B). (Major Dep. at 147, 152-54, 165; PL’s Memo, in Opp. Ex. 11).

Giacobbe was recruited from a competitor and consequently, he was subject to a one-year non-compete, during which he could not sell in certain Columbus territories, including Riverside — even though that account was assigned to him in his contract. (Suppes Dep. at 99; Moore Dep. at 105; Major Dep. at 134-35). Major set Giacobbe’s guarantee based on Giacobbe’s prior year’s W-2 statements, as was consistent with St. Jude’s practice. (Major Dep. at 135). Giacobbe’s guarantee was $10,000 more than the guarantee Moore dictated for Jones. (Major Dep. at 135, 147).

B. Plaintiffs Riverside Account

Plaintiffs primary sales territory consisted of four EPs and Riverside hospital, where she spent the majority of her time, both selling and servicing the account. Jones immediately began building relationships with her physicians, repairing customer perception of St. Jude, and was observed to have good rapport with the customers. As a result, St. Jude’s sales began “trending upward” at Riverside, as well as in Plaintiffs other accounts. (Major Dep. at 154, 181, 185-86). At that time, Jones was St. Jude’s primary sales representative in Riverside, as Giacobbe was prohibited from selling any devices in the account until May 31, 2008, when his non-compete expired.

From July 2007 through January 2008, Plaintiff was the only St. Jude sales representative actively in Riverside selling and servicing the account, yet Giacobbe received sales credit for all the sales in Riverside during this period. (See Major Dep. at 67-68, 135; Suppes Dep. at 100-01; Jones Dep. at 190, 205). Plaintiff worked diligently on her accounts and experienced success in Riverside. (Major Dep. at 156). It was Major’s opinion that she remain in Riverside, “[bjecause in the short time that she had been at Riverside, our business was growing. She was able to get implants out of doctors that we were not getting before she started working there.” (Major Dep. at 156).

Despite Plaintiffs success at Riverside in the fall of 2007, Moore directed Major to set up a meeting with Plaintiff. At the meeting, Moore proposed that Plaintiff release her Riverside territory in exchange for override commissions at OSU. (See Jones Dep. at 89; Moore Dep. at 99-100; Major Dep. at 56-57, 65). Override commissions are commissions received on device sales where the sales representative does not actively work the account. (Major Dep. at 66; Jones Dep. at 90). Although commissions from OSU may have increased Plaintiffs income in the short-term, Defendants’ proposal, if accepted, would have an overall and long-term effect of limiting both Plaintiffs income and her career with the company. (Jones Dep. at 89-90; Major Dep. at 66-67). Plaintiff therefore declined the offer.

After Plaintiff left the meeting, Moore instructed Major to “[w]ait a couple months and take the account.” (Major Dep. at 67; Pl.’s Memo, in Opp. Ex. 4, at B). Indeed, a couple months later, in late November or early December 2007, Moore directed Major to remove Riverside from Plaintiffs territory “based on performance.” (Major Dep. at 225). Major responded, “[Tjhere’s no negative performance to justify that.” Major did not remove Jones from Riverside. (Major Dep. at 225-226).

On January 1, 2008, Moore replaced Major with Fred Suppes (“Suppes”), a white, Caucasian male, as RSM for Columbus. Shortly after starting in Columbus, Suppes hosted an introductory dinner for the region’s sales team; both Jones and Major attended. (Major Dep. at 209). At the dinner, Suppes asked each team member to share an unexpected or amusing fact about himself. Major shared that he was a pretty good hockey player, to which Suppes replied, “Oh, were you the puck?” (Major Dep. at 209-10). Jones and Major were offended by the comment; so much so that Major wanted to “punch him [Suppes] in the mouth.” (Major Dep. at 210-11; Jones Dep. at 206-07). Other members of the sales team were also uncomfortable and told Major they could not believe Suppes had said that. (Major Dep. at 210-11). Neither Jones nor Major felt any action would be taken by St. Jude if they reported this incident based upon their prior experiences and/or knowledge of the company; in fact, each feared retaliation should he/she make such a report. (Id.).

C. Plaintiff’s Sales Performance

On January 3, 2008, Plaintiff met with Moore to review her 2007 sales results and performance. During this meeting, Moore did not identify any performance issues he had -with her, nor did he tell her that he had any concerns regarding the sales at Riverside. (Moore Dep. at 181-83; Jones Dep. at 104). On January 11, 2008, Plaintiff had her first meeting with Suppes to discuss her business plan for her territory. (Suppes Dep. at 82). Suppes expressed no concerns regarding Plaintiffs performance or the volume of sales at Riverside. (Jones Dep. at 111; Suppes Dep. at 84-85). Nor did Suppes mention that there were any territory changes planned. (Suppes Dep. at 83-85).

D. Riverside is Removed from Jones’ Sales Territory

On January 14, 2008, three days after meeting with Plaintiff for the first time, and only eleven business days after being-designated her RSM, Suppes sent an email to Plaintiff informing her that Riverside was removed from her sales territory effective January 28, 2008. Suppes claims that he was instructed to remove Riverside from Plaintiffs territory by Moore and that he had no input in the decision. (Suppes Dep. at 87-88). Conversely, Moore claims that it was Suppes’ recommendation and decision that Plaintiff be removed from Riverside. (Moore Dep. at 93-94).

Riverside was Plaintiffs primary account and constituted 80% of her HV implanters. (Jones Dep. at 203). Defendant St. Jude’s removal of Riverside from Plaintiffs territory would negatively impact her future income. (Jones Dep. at 191-92; Major Dep. at 163-64). . St. Jude did not offer Plaintiff any additional territories or replace the removal of the four Riverside EPs from her contract. (Suppes Dep. at 95). Nor did Jones’ employment contract provide her with additional accounts in the future. (PL’s Memo, in Opp. Ex. 10).

Also, on January 14, 2008, St. Jude sent three white, male sales representatives emails indicating that they were being “removed” from accounts. (Suppes Dep. at 152-53; PL’s Memo, in Opp. Ex. 20; Moore Dep. at 190). Specifically, Giacobbe was allegedly “removed” from Riverside; and, Woyton and McQuarrie were “removed” from OSU. (See PL’s Memo, in Opp. Ex. 20). At the time of his “removal,” Giacobbe was under a non-competition agreement and was not able to call on or sell St. Jude devices at Riverside. However, immediately after Giacobbe’s non-compete expired, he was selling in Riverside. (PL’s Memo, in Opp. Ex. 8; Suppes Dep. at 100). Further, McQuarrie and Woyton were receiving commissions from OSU, though not selling to or servicing the account. (PL’s Memo, in Opp. Exs. 12, 13; Major Dep. at 156-57; Suppes Dep. at 154). Unlike Woyton and McQuarrie, Plaintiff was not given an account to replace the one taken from her. Plaintiff was left with only one EP, Dr. Noble.

E. Plaintiff Complains of Discrimination and Disparate Treatment

On January 15, 2008, the day immediately following her notification that Riverside was to be removed from her territory, Plaintiff emailed Suppes, copying Moore and Valle, complaining, that there was a “disparity in treatment” between herself and the white, male sales representatives. (Jones Dep. at 111-12; Pl.’s Memo, in Opp. Ex. 22).

In response to Plaintiffs email, Moore emailed Suppes a spreadsheet claiming that Plaintiffs sales revenues in Riverside were 32% less than the previous year’s sales. (Suppes Dep. at 161; Pl.’s Memo, in Opp. Ex. 23). Suppes then advised Plaintiff that Riverside had been removed from her territory because of her low sales performance. (Jones Dep. at 114; Pl.’s Memo, in Opp. Ex. 24). However, Moore’s 2007 sales numbers for Riverside (as contained on the spreadsheet sent to Suppes) were misleading and differed greatly from the sales numbers that Plaintiff had been provided by her prior RSM, Major, in December 2007. (Major Dep. at 219-25; PL’s Memo, in Opp. Ex. 9; Ex. 4 at C). According to Moore and his spreadsheet, Jones had “sold” a negative number of HV units in August 2007. (See PL’s Memo, in Opp. Ex. 23, at FS 293-95). In actuality, Riverside had substantial sales in August 2007; the negative figure on Moore’s spreadsheet was a result of a $187,000 warranty credit Moore authorized against Jones’ sales. (PL’s Memo, in Opp. Ex. 4 at D and Ex. 25 at B). The warranty credit was not the result of any of Jones’ sales, but was a credit resulting from Pacesetter sales in Riverside prior to Jones’ transfer to Columbus. Despite being aware that Rooney was the responsible sales representative, Plaintiff was assessed the warranty credits. (See Major Dep. at 222-25; PL’s Memo, in Opp. Ex. 23).

In response to Defendants’ claim that her sales performance was poor, Plaintiff immediately presented St. Jude with evidence of her true sales numbers on January 17, 2008. Plaintiff pointed out that Moore had inflated St. Jude’s market share for Riverside by $4 million. (PL’s Memo, in Opp. Ex. 26). Plaintiff also alerted Moore and Suppes to the fact that the purported sales revenue upon which they relied did not correspond with her actual sales, nor did it correspond to the hospital’s records. Finally, Plaintiff pointed out that the difference in the sales numbers was largely attributable to Riverside’s own records which show sales of $91,387.00 worth of St. Jude devices to the hospital in August 2007. Further evidence of Plaintiffs sales, produced by St. Jude in discovery, reflect that Plaintiff had sales numbers of $280,210 in August 2007. (PL’s Memo, in Opp. Ex. 4 at C and Ex. 15; Galeano Aff.).

Defendants did not respond to Plaintiffs emails dated January 15th and January 17th, 2008. After waiting a month for a response from Defendants, on February 13, 2008, Plaintiff contacted her HR representative, Valle, and stated that she wished to file a formal complaint. (Valle Dep. at 150-51; PL’s Memo, in Opp. Ex. 27). Instead of commencing an investigation, Valle scheduled a telephone conference with Plaintiff on February 14, 2008. During their conference, Valle advised Jones that her removal from Riverside could not have been based on sales because she, Valle, would have been made aware of a performance issue prior to the account being removed. (Jones Aff., PL’s Memo, in Opp. Ex. 9 at C; Valle Dep. at 60-61, 152). Prior notification to Human Resources of performance issues before removing a sales account is consistent with St. Jude’s policy and practice. (Valle Dep. at 60-61, 152). During the call, Valle did not answer Plaintiffs questions; instead, she scheduled an in-person meeting on February 20, 2008, with Plaintiff, Suppes and herself to discuss the situation. (Valle Dep. at 153-55; Jones Dep. at 150-51).

On February 20, 2008, Plaintiff, Valle, and Suppes met in-person to discuss Plaintiffs complaints of discrimination relating to the removal of Riverside from her territory. Prior to this meeting, Suppes told Jones she was removed from Riverside because of poor sales performance. At the meeting, Defendants claimed that Riverside was removed from Plaintiffs territory because her territory was geographically too large. (Jones Dep. at 128; Valle Dep. at 158). Plaintiff then pointed out that her sales territory was actually geographically smaller than the territories of the majority of her white, male counterparts. (Jones Dep., 128; Valle Dep., 158). Defendants next claimed that the physicians at Riverside wanted a “more technical rep” and that Dr. Kidwell had said that Plaintiff was not their “first, second, or third choice” of a sales representative. (Jones Dep. at 128; Valle Dep. at 160). Plaintiff again argues that this was not accurate because, at the time Defendants removed Riverside from her territory, they had not received comments from, nor spoken with any of the Riverside physicians regarding Plaintiff. (Suppes Dep. at 105-06 (stating that “due diligence” in the accounts was not conducted until after January 14, 2008, the announcement of her removal)).

Plaintiff followed up this comment by speaking with Drs. Kidwell and Fu by telephone about the issue of her technical skills. Dr. Kidwell denied the claim, stating, “I said nothing of the sort.” (Kidwell Tr. 3). Similarly, Dr. Fu stated, “I never said anything about your technical competence. I never said that you were never my first, second or third choice.... I never had an issue.” (Fu Tr. 3-4, 8).

The final reason that Defendants gave Plaintiff as a basis of removing Riverside from her territory was because Heather Connelly (“Connelly”), the Electrophysiology Laboratory (“EP Lab”) Manager at Riverside, allegedly told Suppes that Jones was “dangerous” and had put patients at risk. (Jones Dep. at 128; Valle Dep. at 160; Pl.’s Memo, in Opp. Ex. 30 and Ex. 9 at D). Again Plaintiff followed up this reason by calling Connelly, who denied making any of the alleged statements. (Connelly Aff.; PL’s Memo, in Opp. Ex. 31 at B, 4). In fact, Connelly is recorded as representing that professionally she had “no problems” with Jones, that Jones was good at follow up and was here [in Riverside] in a timely fashion and that she thought Jones was “a fine rep.” (Connelly Aff.; Pl.’s Memo, in Opp. Ex. 31 at B, Tr. 7, 12). Further, Connelly stated that Suppes had not even talked to her about Plaintiff until after it had been announced that Plaintiff was being taken out of Riverside. (PL’s Memo, in Opp. Ex. 31 at B, Tr. 6).

After the February 20th meeting, Defendant proposed to reinstate Plaintiff to Riverside, however, the proposal only included assignment of two EPs, rather than the four she had previously been assigned. Further, she was offered substantially reduced commissions rates of 5% LV and 3%.HV. Plaintiff rejected Defendants’ proposal to be reinstated to Riverside under these terms because she would earn little to no commission income from the account. (Jones Dep. at 147, 154). Then, on February 29, 2008, Defendants proposed that Plaintiff return to Riverside under one of the following two scenarios: (a) assignment of two EPs, Drs. Kidwell and Kleman, at rates of 10% LV and 6% HV; or (b) assignment of all five EPs at Riverside, Drs. Kidwell, Kleman, Fu, Nichols and Nelson, at commission rates of 2.5% LV and 1.5% HV. (Jones Dep. at 147; Pl.’s Memo, in Opp. Ex. 31). Plaintiff, in considering this second option, advised Defendants that her acceptance would be contingent upon Moore’s agreement to accompany her into the account as a demonstration of St. Jude’s support and to invalidate St. Jude’s defamatory comments and innuendo regarding her alleged technical incompetency and “dangerousness.” Yet, Moore did not agree. (Jones Dep. at 161-62).

F. Plaintiffs FMLA Leave

Plaintiff is a single, working mother and the sole financial support for her son. When her largest account and what would be her primary source of commission was removed and not replaced, she suffered tremendous anxiety and stress. Plaintiff was humiliated and embarrassed by Defendants’ treatment of her, their comments regarding her professional competency, and the negative impression that was left within Riverside and among her peers. (Jones Dep. at 155-56). Because of her anxiety and stress, Plaintiffs physician placed her on FMLA leave from March 7, 2008, through May 25, 2008. (Jones Aff., PL’s Memo, in Opp. Ex. 9).

When Jones returned from FMLA leave, Defendants again proposed that she only be “reinstated” to Riverside under one of the two options previously discussed and that she make her decision by June '24, 2008. (Jones Dep. at 167; PL’s Memo, in Opp. Ex. 37).

G. Plaintiffs Charge of Discrimination with the EEOC

Plaintiff filed a charge of discrimination with the EEOC on June 27, 2008. That same day, Plaintiff responded to Moore’s territory options. (PL’s Memo, in Opp. Ex. 37). Jones accepted the option to work with all five EPs at Riverside and simultaneously apprised Moore of her EEOC Charge. Jones also requested that, before going back into the account, Moore launch a full investigation of the comments made about her performance to aid in the repair of her relationships at Riverside. (Jones Dep. at 169). St. Jude did not conduct an investigation. (Jones Dep. at 170). Instead, Moore then offered Plaintiff override commissions at Riverside so she would not have to go into the account, allegedly leaving her physician relationships there tarnished. (Jones Dep. at 170; PL’s Memo, in Opp. Ex. 38; Suppes Dep. at 213).

Defendant St. Jude has an equal opportunity policy that applies to all employment decisions, including job assignments. (Valle Dep. at 58). St. Jude employees who feel they have been the subject of discrimination and/or retaliation are directed to their HR Manager. (Valle Dep. at 58). It is then the obligation of the HR Manager “to thoroughly investigate the complaint in a timely manner.” (Valle Dep. at 58). Valle, Jones’ HR Manager, defined timely as being less than one week after a complaint is received. (Valle Dep. at 58-59). Valle claims she then investigated Plaintiffs complaint of discrimination because of the inconsistencies and discrepancies in the information provided to her by Jones and Defendants. (Valle Dep. at 167). It was Valle’s typical practice to prepare a written report and recommendation summarizing her investigation. (Valle Dep. at 172). However, Valle did not recall preparing a report in Jones’ case and no such report was produced during the course of discovery. (Valle Dep. at 171).

On May 16, 2008, St. Jude’s general counsel advised that a “full investigation” of Jones’ complaints had been completed. (Valle Dep. at 204, Ex. 45; Suppes Dep. at 226). However, Plaintiff asserts that St. Jude’s “full investigation” failed to include: an interview with Major, the only other African-American in the region and Jones’ former RSM; any interviews with other sales representatives in the region; an investigation of the false statements Suppes made to Jones in their February 20, 2008 meeting; and an investigation of the “hockey puck” comment made by Suppes about Major. (Valle Dep. at 214).

On May 29, 2008, four months after Jones’ complaint, Valle and Rob Dunn (“Dunn”), St. Jude’s in-house counsel, began interviewing other personnel in Columbus. (Valle Dep. at 216-17; Pl.’s Memo, in Opp. Ex. 35). However, St. Jude limited its investigation to the “hockey puck” comment, and did not investigate Plaintiffs other complaints. (Valle Dep. at 218). At no point was the removal of Riverside from Jones investigated; the reasons given for the removal were not examined; the disparate treatment of Jones as compared to the white, male sales representatives was not questioned; and, St. Jude did not take steps to independently verify Jones’ performance or sales. (Valle Dep. at 141, 143, 159-62, 212). St. Jude simply accepted Moore’s explanation at face value. (Valle Dep. at 209).

During the investigation, Valle was heard referring to Plaintiff as a “worthless piece of sh*t.” (Suppes Dep. at 148; Major Dep. at 216-17). And, Valle admitted that she had stopped reading and responding to Jones’ emails. (Valle Dep. at 232-34). Suppes was not interviewed about the “hockey puck” comment until almost six months after it occurred. (Suppes Dep. at 231). Valle testified that she recommended Suppes’ termination, and he was terminated for cause. (Valle Dep. at 56). Moore, however, refused to acknowledge any problem with Suppes’ comment or that his comment warranted termination. (Moore Dep. at 91-92; Suppes Dep. at 233). Suppes was replaced by a new RSM, Harold Ellen (“Ellen”), in September 2008. (Ellen Dep. at 31-32; Moore Dep. at 237).

Plaintiff also asserts that Defendants discriminated and retaliated against her by failing to assist her in providing adequate coverage for her territory. Plaintiff Jones says that she learned that she was the only sales representative without a dedicated TSS. (Pl.’s Memo, in Opp. Ex. 39). A technical sales specialists (“TSS”), works with sales representatives in a more clinical, service oriented role, and provide follow up to check and monitor devices. She further describes that on several different occasions, her requests for coverage assistance were ignored. (See PL’s Memo, in Opp. at 30-32).

H. Plaintiffs 2008 Annual Performance Appraisal

Despite having been the RSM for only three months, Ellen was required to complete the 2008 annual performance appraisals for St. Jude’s Columbus team. (Ellen Dep. atl99-201; Valle Dep. at 26). Ellen completed all performance appraisals for the male sales representatives and reviewed them with the men on March 19-20, 2009. (Ellen Dep. at 216, 219, 221-23). Almost three weeks later, on April 7, 2009, Ellen gave Plaintiff her performance appraisal. (Ellen Dep. at 255-57; PL’s Memo, in Opp. Ex. 49). Ellen testified that in completing these performance appraisals, he rated the representatives in five categories, with the most heavily weighted category being sales. (Ellen Dep. at 217). Ellen gave all the St. Jude male sales representatives, Woyton, Giacobbe, Major, Rooney, and Stohr, an overall rating of “4,” an “exceeds expectations.” (Ellen Dep. at 232; PL’s Memo, in Opp. at 45-48). Plaintiff, the sole female sales representative, was given an overall rating of “2” below expectations. (Ellen Dep. at 261; PL’s Memo, in Opp. Ex. 49). Plaintiff questioned Ellen about her low rating and he told her, “Some changes were made to your review.” (Jones Dep. at 209). Ellen told Jones that he originally gave everyone a “4,” including her, but that Moore directed him to lower her appraisal to a “2.” (Jones Dep. at 208-10). Moore did not make changes to anyone else’s performance appraisal. (Ellen Dep. at 208-09).

Jones drafted a rebuttal to her performance appraisal on April 24, 2009, addressing each item on her performance appraisal. (Ellen Dep. at 273; PL’s Memo, in Opp. Ex. 53; Valle Dep. at 232). On May 4, 2009, Defendants, through Ellen, responded by simply stating that Jones’ performance appraisal was based on her sales results. (Ellen Dep. at 277; PL’s Memo, in Opp. Ex. 52).

In April 2009, less than a month after giving Plaintiff her low performance appraisal, Defendants began recruiting a new sales representative to assume Plaintiffs limited sales territory. (Ellen Dep. at 101-03, 115; PL’s Memo, in Opp. Ex. 54). Jones confronted Ellen by email stating, “It is extremely embarrassing and humiliating to have my customers in Newark and Zanesville confront me about why Suzi Williams is asking them to support her as the St. Jude Sales Representative when in fact, I am the St. Jude Medical sales representative in the area.” (PL’s Response Ex. 54). In response, Ellen told Jones that St. Jude was looking for someone to “partner” with her, even though Jones’ territory only had one EP and, as a whole, would not support more than one sales representative. (Ellen Dep. at 111; Major Dep. at 165).

In July 2009, St. Jude learned that a new EP, Dr. Migeed, was joining Genesis Health Care in Zanesville, Ohio (“Genesis”). Jones and Major each were assigned specific physician accounts at Genesis. At the time Dr. Migeed arrived, Major had at least six EPs and Jones had only one, Dr. Noble. Defendants gave the new account to Major, not Jones. (Major Dep. at 26-36). At the time the decision was made to give this opening to Major, Jones had just received her poor performance appraisal. (Major Dep. at 28-30). St. Jude’s policy was that any type of written disciplinary action, performance review rating of “below expectation,” or a PIP will prevent an employee from posting for a transfer or moving into an opening. (Valle Dep. at 68).

I. Dr. Noble Account

In February 2009, Major requested that Moore provide a way for him to receive commission credit on Dr. Noble’s sales, in addition to the commission Jones was already receiving because Major had been assisting Jones in building her relationship with Dr. Noble. (Major Dep. at 229-30, 233). Major was aware that other white sales representatives had been given such a commission arrangement. (Major Dep. at 234). Moore refused, and instead required Jones to choose to split her Dr. Noble commissions or Major would receive nothing. Plaintiff could not agree financially to such a reduction of her commissions. (Jones Dep. at 184). Moore then faulted her for not “workfing] in partnership with” Major. Later, Moore used his decision to not change the commission structure on Dr. Noble’s sales to justify his removal of Dr. Noble’s account from Jones and to place her on a PIP.

A few weeks after Plaintiff refused to reduce her commission on Dr. Noble’s account, on March 10, 2009, Ellen acknowledged that Jones’ efforts were increasing sales with Dr. Noble, but that he was “getting a lot of pressure” to take her out of the account. The pressure on Ellen mounted and, on June 4, 2009, he wrote Moore stating, “I’d like to talk to you more about your decision to remove Chyrianne from Dr. Noble.” (Ellen Dep. at 282-83). Moore attempted to shift responsibility for the decision away from himself stating, “This is your decision not mine. I am just clearing the path for you .... “ Ellen did not remove Dr. Noble’s account from Jones that day. Nonetheless, two weeks later, and with a sudden absence of emails between Ellen and Moore, Jones was removed from Dr. Noble’s account because of her “sales numbers.” Major was then assigned to the Noble account. (Ellen Dep. at 281-86).

J. Plaintiffs Termination in RIF or Placed on a PIP

In August 2009, St. Jude began a RIF. Defendants identified three individuals in Columbus for participation in the RIF: Chris Webb, a white, male associate sales representative assigned to Riverside; Andrew Fitzpatrick, a white, male TSS; and Plaintiff Jones, the only female and one of two black sales representatives in the region. The individuals to be selected for the RIF were to be either employees at will or those that were under-performing based on sales. Of these three individuals, only Jones was selected for termination. Defendants gave Jones the options of: (a) being terminated as part of the RIF; or (b) being placed on a PIP. Plaintiff elected to be placed on a PIP rather than lose her job. (Jones Dep. at 236; Moore Dep. at 264-267).

On August 18, 2009, Defendants placed Plaintiff on a PIP as part of their “RIF.” (Moore Dep. at 266-67). In the PIP, Moore criticized Jones for not achieving expected sales results in her territory. Moore set Jones’ sales quota at 12 LV units per month, contending that the market potential in her territory was 405 units per year (roughly 34 units per month). In setting these sales goals, Moore used the market potential for the entire hospitals identified in Jones’ contract, despite the fact that Jones’ sales territory did not include the entire hospitals, only certain, limited physicians at each hospital. According to Major, the market potential for the specific doctors in Jones’ contract was about 160 units per year, 60% less than what Moore claimed. (Major Dep. at 253). Further, the sales quota Moore set for Plaintiff required that she exceed St. Jude’s national market share in her territory. St. Jude’s national market share is 28%; however, Moore’s sales quota of 12 units per month would require Jones to achieve a market share of 35%, utilizing Moore’s market potential of 405 units per year. (Ellen Dep. at 138; Moore Dep. at 268-69).

Moore also placed Major on a PIP that required Major, in just three weeks, to generate $2,700,000 in sales during the Christmas season. Major did not accept the PIP because he believed it was a way for Moore “to document why I was fired.” (Major Dep. at 204-05). In lieu of the PIP, Major was demoted to sales representative. (Major Dep. at 206).

In a similar situation, Moore demanded that Hudson, an African-American male reporting directly to him, accept a demotion from RSM to sales representative while planning to give Hudson a historically low-sales territory that had to be “turned around” in three months. Hudson attested, “Moore was setting me up to fail by using inflated and unrealistic performance goals as a pretext to terminating me because of my race. Moore was presenting me with a territory that was unlike any assigned to white Caucasian sales representatives. The sales expectations set by Moore were unattainable in the time frame that would have been expected of me. It is my belief that Moore would have used the low sales of the territory he wanted to assign me as a reason to terminate me from St. Jude at the end of the year.” (Hudson Aff., Jones MSJ Ex. 17 at ¶ 19-20.)

Defendants then rehired Ellen who was terminated during the RIF, and also hired two new sales representatives in Columbus after the RIF: Lewis Antol, a white, male sales representative for Columbus, and Brett Douglas, another white, male sales representative.

While on her PIP, Plaintiff was required and did submit weekly progress reports. In these reports, she documented each implant; however, Moore refused to credit her for many of the implants because some of the physicians were “not in her contract.” (Moore Dep. at 273, 277). Jones had implants with at least four physicians not in her contract. She was expected to call on these physicians, but she did not receive credit for the implants. (Moore Dep. at 278).

On October 7, 2009, Defendants extended Plaintiffs PIP by two months, from October 18, 2009, to December 4, 2009. During this extension, Moore changed the period of time by which he was measuring her sales performance, using calendar months rather than measuring from the date Jones was placed on the PIP. (Moore Dep. at 275-77). By making this change, Moore omitted four implants from Jones’ sales and, in addition, two other implants were excluded. Plaintiffs numbers indicated her October sales to be ten units, while Moore’s reflected four units. Consequently, Moore found Jones’ sales were deficient and recommended her termination. (Moore Dep. at 278-79).

K. Plaintiffs Termination

Defendants terminated Plaintiff on December 17, 2009 based on her poor sales performance. Plaintiff was the only African-American female employed in Columbus. St. Jude selected 188 (11.75%) of its 1600 employees for participation in its RIF. Of those 188 RIF’d employees, 15 employees were African-American and 74 were female. Of the total workforce of 1600 employees, 496(31%) are female. St. Jude terminated 74 of its 496 female employees, or 15%. In comparison, of St. Jude’s 1600 employees, only 48(3%) are African-Americans; and St. Jude terminated 15 of these 48 African-American employees as part of its RIF. (Pl.’s Memo, in Opp. Ex. 64). St. Jude terminated 31.25% of its African-American employees in its RIF. In contrast, St. Jude terminated only 11% of its white employees and only 10% of its male employees as part of its RIF. (PL’s Memo, in Opp. at 42-44).

St. Jude also claims, in part, that Plaintiff was terminated because she recorded conversations with St. Jude employees and customers in violation of company policy. Plaintiff asserts that she recorded conversations to defend herself against Defendants’ discriminatory and retaliatory actions and to document the ongoing false allegations made against her by Defendants. For example, Plaintiff recorded her conversations with Connelly, and Drs. Fu and Nichols, to refute St. Jude’s statements attributable to each of these individuals. (Jones Dep. at 137-38). Similarly, Jones also recorded conversations with Drs. Morrice, Brantley, and Poole regarding St. Jude and Rooney’s allegation that they (the physicians) were no longer using St. Jude devices when referring patients to OSU. Plaintiff made the calls and had the conversation with these three physicians only because she was instructed to do so by Ellen, who told her to get to the bottom of it. Plaintiff asserts that she had to record the conversations to prove to Ellen that she was not the problem. (Jones Dep. at 137-38)

Defendants first learned of the existence of Plaintiffs recordings during the parties’ May 8, 2009, mediation. Despite knowing of these recordings, St. Jude waited seven months, until December 2009, to terminate Jones.

L. The Instant Action

Plaintiff initiated this action on November 6, 2008, alleging that she suffered various adverse employment actions and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, the Equal Pay Act, 29 U.S.C. § 206(d), and Ohio Revised Code ch. 4112, § 4111.17. On December 30, 2010, Defendants filed a Motion for Summary Judgment, seeking judgment in their favor on all claims. (Doc. 61). This motion has been fully briefed and is ripe for review.

II. SUMMARY JUDGMENT STANDARD

The standard governing summary judgment is set forth in Rule 56 of the Federal Rules of Civil Procedure, which provides that “[t]he 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.” ■

Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate, however, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir.2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a summary judgment motion, the Court must view all the facts, evidence and any inferences that may permissibly be drawn from the facts, in favor of the nonmoving party. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The Court will ultimately determine whether “the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-53, 106 S.Ct. 2505. Moreover, the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir.1978). The Court’s duty is to determine only whether sufficient evidence has been presented to make the issue of fact a proper question for the jury; it does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505; Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir.2003).

In responding to a summary judgment motion, the nonmoving party “cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must ‘present affirmative evidence in order to defeat a properly supported motion for summary judgment.’ ” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989) (quoting Liberty Lobby, 477 U.S. at 257, 106 S.Ct. 2505). The existence of a mere scintilla of evidence in support of the opposing party’s position is insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. The nonmoving party must present “significant probative evidence” to demonstrate that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 340 (6th Cir.1993). The Court may, however, enter summary judgment if it concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the presented evidence. Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505; see also Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994).

Moreover, “[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Street, 886 F.2d at 1479-80. That is, the nonmoving party has an affirmative duty to direct the court’s attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris, 260 F.3d 654, 665 (6th Cir.2001).

III. DISCUSSION

Plaintiff Jones asserts the following employment discrimination claims, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, the Equal Pay Act, 29 U.S.C. § 206(d), and Ohio Revised Code ch. 4112, § 4111.17: (1) race and gender discrimination; (2) hostile work environment; (3) retaliation; (4) wage discrimination; and (5) violation of the Equal Pay Act (Compl. ¶¶ 40-103). Defendants move for summary judgment on all claims. The Court will address each of Plaintiffs claims in turn.

A. Plaintiffs Employment Discrimination Claims

Plaintiff Jones asserts that she was the victim of employment discrimination based on her race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and Ohio Revised Code Chapter 4112.

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating “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).

Employment discrimination is also prohibited by 42 U.S.C. § 1981(a), which states in relevant part that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens.” The United States Supreme Court acknowledged the “necessary overlap” between Title VII and § 1981, but noted that the “remedies available under Title VII and under § 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent.” CBOCS West, Inc. v. Humphries, 553 U.S. 442, 455, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008) (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975)). For example, Title VII provides for administrative remedies. Id. In CBOCS West, Inc., the Supreme Court held that § 1981 applies to retaliation claims. CBOCS West, Inc., 553 U.S. at 447, 128 S.Ct. 1951. In considering employment discrimination and retaliation claims brought pursuant to § 1981, the Court utilizes the same analytical framework applied to claims under Title VII. See, e.g., Noble v. Brinker Int'l, Inc., 391 F.3d 715, 720 (6th Cir.2004); Abbott v. Crown Motor Co., 348 F.3d 537, 541 (6th Cir.2003); and Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 n. 2 (6th Cir.2000).

Likewise, in analyzing employment discrimination and retaliation claims brought under Ohio Revised Code Chapter 4112, the Court utilizes the same analytical framework applied to claims under Title VII. See Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm’n, 61 Ohio St.3d 607, 575 N.E.2d 1164 (1991); Plumbers and Steamfitters Joint Apprenticeship Committee v. Ohio Civil Rights Commission, 66 Ohio St.2d 192, 196, 421 N.E.2d 128 (1981) (holding that the Ohio Supreme Court, in considering employment discrimination claims under Ohio Revised Code Chapter 4112, adopts the tests established by the federal courts for assessing claims under parallel anti-discrimination statutes).

1. Plaintiff’s Race Discrimination Disparate Treatment Claims

Plaintiff alleges the following instances of disparate treatment based on her race and sex: (1) removing Riverside from her sales territory in January 2008; (2) giving her a “2” (below expectations) on her 2008 performance evaluation in April 2009; (3) removing Dr. Charles Noble from her sales territory in June 2009; (4) placing her on a PIP; and (5) terminating her employment in December 2009. Defendants maintain they are entitled to judgment in their favor on each of these alleged disparate treatment claims. The Court agrees.

In order to prevail in an employment discrimination disparate treatment claim, a plaintiff must either present direct evidence of discrimination or rely upon the burden-shifting scheme set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), to create an inference of discrimination. Alexander v. Local 196, Laborers’ Int’l Union, 177 F.3d 394, 402 (6th Cir.1999). Plaintiff, in her Memorandum in Opposition, fails to offer any direct evidence of race discrimination, stating “Discrimination claims substantiated by circumstantial evidence, such as Jones’ claims, are established by the burden-shifting analysis set forth in McDonnell Douglas.” (Pl.’s Memo, in Opp. at 48).

To establish a prima facie case of employment discrimination based on race and sex, a plaintiff must present circumstantial evidence demonstrating the following elements: (1) that the plaintiff is a member of a protected class; (2) that the plaintiff was qualified for the position; (3) that the defendant subjected the plaintiff to an adverse, employment action; and (4) that the defendant did not subject similarly situated persons outside the protected class to such adverse action. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff establishes a prima facie case, then the burden shifts to the defendant to come forward with a legitimate, non-discriminatory reason for the adverse action against the plaintiff. See id.; Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089. If the defendant comes forward with a legitimate, non-discriminatory reason for its actions, then the burden returns to the plaintiff to prove that the defendant’s proffered reason is a mere pretext for discrimination. See id.; Burdine, 450 U.S. at 253, 101 S.Ct. 1089. “The nature of the burden that shifts to the defendant should be understood in light of the plaintiffs ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id. at 253, 101 S.Ct. 1089. This burden-shifting framework is intended to be flexible in differing factual circumstances. See e.g., Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 869-70 (6th Cir.2001), citing Burdine, 450 U.S. at 254 n. 6, 101 S.Ct. 1089.

In the instant case, Defendants contend that Plaintiff fails to establish a prima facie case of discrimination for each of the following alleged claims. For each of Plaintiffs disparate treatment claims, it is undisputed that Plaintiff, as an African-American female, is a member of a protected class. Further, Defendants do not dispute that Plaintiff was qualified for the position of sales representative, satisfying the first and third elements.

(a) Removing the Riverside Account from Plaintiff’s Sales Territory

Defendants maintain that Plaintiff fails to establish a prima facie case of discrimination with respect to this claim because (1) it did not constitute an adverse action; and (2) she cannot identify similarly situated individuals who were treated more favorably. Finally, Defendants assert that they are entitled to summary judgment on this claim because they have asserted a legitimate, ■ nondiscriminatory justification for denying the pay adjustment, and Plaintiff cannot demonstrate that the proffered reason is a pretext for discrimination.

i. Adverse Action

Plaintiff was notified on January 14, 2008 that Riverside and its associated physicians would be removed from her sales territory effective January 28, 2008. After this account was removed, she was left with only one EP, Dr. Noble, who exclusively used a competitor’s product. Therefore, Plaintiff argues that after her guarantee expired and her income was based solely on commissions, her earnings would drastically decrease. Plaintiff asserts that this loss of income is an adverse employment action, relying on Jordan v. City of Cleveland, 464 F.3d 584, 596 (6th Cir.2006) (holding that a denial of money qualifies as an adverse employment action to any employee for Title VII purposes).

Defendants contend that Plaintiffs removal from the Riverside account and then the attempt to reassign her to the account as part of a new team of four sales representatives was not an adverse employment action because she did not accept the offer to return to Riverside. Defendants assert that the creation of sales teams can actually increase commission payments based on increased sales, even though sales representatives may have to accept a lower commission rate. Since Plaintiff refused to join the Riverside sales team, it is unknown what Plaintiffs sales revenue would have been had she agreed to join the team. Defendants argue that refusing a lateral transfer “precludes [a .plaintiff] from arguing that her termination [or other resulting employment action] was an ‘adverse employment decision’ for the purposes of establishing a prima facie case.” Darnell v. Campbell County Fiscal Court, 1991 WL 11255, at *3, 1991 U.S.App. LEXIS 1755, at *7 (6th Cir.1991).

The Sixth Circuit has defined an adverse employment action as a “materially adverse change in the terms and conditions of [plaintiffs] employment because of [the] employer’s conduct.” Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir.2004) (quoting Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir.1999)); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6th Cir.1996). “[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Hollins, 188 F.3d at 662. “Examples of adverse employment actions include firing, failure to promote, reassignment with significantly lower responsibilities, a material loss of benefits, suspensions, and other indices unique to a particular situation.” Smith, 378 F.3d at 575-76, (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).

In the instant case, there is some question as to whether Plaintiff may have actually made more money had she joined the new sales team at Riverside, or even accepted the OSU position. Nonetheless, construing the facts in the light most favorable to Plaintiff, when Riverside was removed from her territory, it substantially reduced Plaintiffs job responsibilities and decreased her ability to earn commissions. Accordingly, the Court concludes that Plaintiff has sufficiently demonstrated the adverse action element of her prima facie case.

ii. Similarly Situated

Defendants also argue that Plaintiff has failed to establish that she was treated differently from similarly situated employees outside of her protected class in the removal of Riverside from her sales territory. Defendants point out that three Caucasian male co-workers (Paul Giacobbe, Doug Woyton, and Jim McQuarrie) had accounts removed on the same day as Plaintiff and all three were made a part of the new Riverside sales team, some at commission rates comparable to or lower than those offered to Plaintiff.

Similarly situated employees are ones who 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.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992). In determining whether an allegedly comparable employee is similarly situated, the ultimate question is whether “all of the relevant aspects of [his] employment situation were ‘nearly identical’ to those of the [comparator’s] employment situation.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir.1998); Clayton v. Meijer, 281 F.3d 605, 611 (6th Cir.2002). However, the burden of pointing to a “similarly situated” employee is not onerous and a plaintiff need not demonstrate similarity in all respects. Jackson v. FedEx Corp. Servs., Inc., 518 F.3d 388, 394-96 (6th Cir.2008).

Defendants concede that Plaintiff Jones is similarly situated to Woyton, McQuarrie, and Giacobbe. Plaintiff first argues that she was treated less favorable that Mr. Giacobbe because he was not actually removed from the Rivérside account. Plaintiffs argument is based solely on the fact that Mr. Giacobbe’s contract contains no addendum removing him from the Riverside account. However, Defendants point out that Plaintiffs own contract does not contain such an addendum either, and it is undisputed that she was removed from the Riverside account. Rather, Plaintiff herself testified that when the emails were sent notifying her and Mr. Giacobbe that the Riverside account would be removed from their respective territories that Mr. Giacobbe was “angry,” and that both of them were “stunned” by the decision. (Jones Dep. at 108-09).

At the same time Plaintiff and Mr. Giacobbe were removed from Riverside, Mr. Woyton and Mr. McQuarrie were removed from Ohio State and they were all offered a position on the newly formed sales team at Riverside. Plaintiff was offered commission rates equal to or higher than the white males on the new sales team, and/or commissions on an equal or greater number of doctors. Plaintiff was offered two doctors at 10% for low-voltage devices, and 6% for high-voltage; or all five doctors at 2.5% for low-voltage devices and 1.5% for high-voltage. (Jones Dep. at 153-54, Ex. 14). Whereas Mr. Woyton was assigned to only three of the five doctors at rates of 2.5% for low-voltage and 1.5% for high-voltage. Mr. McQuarrie was assigned to only two of the five doctors at 2.5% for low-voltage devices and 1.5% for high-voltage. (Moore Dep. at 133, 145, Exs. 6-7).

Plaintiff is essentially arguing that her similarly situated male co-workers were unaffected by their reassignments whereas she was left with fewer EPs than the others. However, that is not the issue. The issue is whether Plaintiff was treated less favorably than other employees with respect to the removal of the Riverside account. During this realignment, Plaintiff lost four EPs, Mr. Giacobbe lost five EPs and Woyton and McQuarrie each lost nine EPs.

Additionally, Plaintiff argues that in the three years after the removal of the accounts, Giacobbe, Woyton, and McQuarrie had other accounts added to their territories. However, Plaintiff has failed to offer any evidence that there is any connection between the decision to remove Riverside from her sales territory and the subsequent decisions to add doctors to other sales representatives’ territories. Rather, Defendants assert that there is evidence to show that the other sales representatives received additional EPs later because their non-compete agreements covering those doctors expired.

Based on the aforementioned, Plaintiff has failed to show that she was treated differently than other similarly situated employees and therefore has failed to establish a prima facie case of race and sex discrimination with respect to the removal of Riverside from her sales territory.

iii. Pretext

Finally, even if Plaintiff could set forth a prima facie case with respect to her claim for disparate treatment based upon the removal of Riverside from her sales territory, Defendants argue that they would still be entitled to judgment on this claim because Plaintiff has not met her burden to demonstrate that Defendant’s legitimate proffered reason for the removal is a mere pretext for discrimination. Defendants assert that their legitimate non-discriminatory reason for Plaintiffs termination is that the Riverside and OSU accounts were removed from the four sales representatives because they were trying to build sales teams that could work together better and increase the market share in the region. (See Defs.’ Mot. at 29).

Defendants describe that at the beginning of 2008, they saw problems with both the Ohio State and Riverside accounts. Specifically, with the Ohio State account, Mr. McQuarrie and Mr. Woyton were not being received well by the physicians and did not work well with Tim Rooney, the other sales representative in that account. At Riverside, Mr. Giacobbe and Plaintiffs market share in the account was 5 to 6 percent, which was significantly lower than St. Jude’s national market share of approximately 30 percent. In addition, sales were down 32 percent in the account over the prior six months compared to the first half of 2007. Defendants argue that Plaintiff cannot show that these reasons are false because she testified regarding the problems with the Ohio State account and furthermore she does not dispute that Riverside had a low market share. (Jones Dep. at 111-14).

“An employee can show pretext by offering evidence that the employer’s proffered reason had no basis in fact, did not actually motivate its decision, or was never used in the past to discharge an employee.” Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir.1998). “In challenging an employer’s action