Jeffrey Kalich v. AT&T Mobility, LLC
OPINION and JUDGMENT filed: The district court's disposition in favor of AT&T is AFFIRMED. Decision for publication pursuant to local rule 206. Julia Smith Gibbons, Richard Allen Griffin, and Bernice Bouie Donald (AUTHORING), Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0128p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AT&T MOBILITY, LLC,
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:09-cv-14781—David M. Lawson, District Judge.
Decided and Filed: May 10, 2012
Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.
ON BRIEF: Eric I. Frankie, Detroit, Michigan, for Appellant. Richard M. Tuyn,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PLLC, Bloomfield Hills,
Michigan, for Appellee.
BERNICE BOUIE DONALD, Circuit Judge. Plaintiff-Appellant Jeffrey Kalich
filed a complaint against his former employer, Defendant-Appellee AT&T Mobility,
LLC, (“AT&T”), in state court pursuant to Michigan’s Elliott-Larsen Civil Rights Act
(“ELCRA”). Kalich alleged that his immediate supervisor David Rich created a hostile
work environment by subjecting Kalich to comments that constituted sexual harassment.
AT&T removed the action to federal court. On November 2, 2010, the district court
granted AT&T’s motion for summary judgment, finding that Kalich’s claims were not
Kalich v. AT&T
actionable under the sexual harassment hostile work environment provisions of ELCRA.
Kalich appealed. For the reasons stated herein, we AFFIRM.
On May 19, 2008, AT&T hired Kalich as a retail store manager in Clarkston,
Michigan. Rich, AT&T’s area sales manager, was Kalich’s immediate supervisor. Rich
visited Kalich’s store approximately ten times per month. During the course of Kalich’s
employment, Rich made various comments to Kalich that Kalich found upsetting and
offensive. These comments are summarized chronologically as follows:
On June 12, 2008, Rich said to Kalich, “Oh I like your glasses. You should
change your name to Virginia or Margaret. No. I like Virginia the best.” Throughout
the rest of that day, Rich continued to refer to Kalich as Virginia, Margaret, and Peggy
in front of other staff members.
On August 7, 2008, Rich made remarks about Kalich’s dog, a Yorkshire terrier.
Rich asked Kalich, “What kind of dog is that? Oh, how cute. It figures.” Rich later
said, “That’s the perfect dog for you. What’s his name? Fluffy, Oliver? Okay. Tell
Oscar–I mean Oliver or Fluffy or whatever hello.” Thereafter, Rich regularly referred
to Kalich’s dog by the names of Fluffy or Princess.
On December 11, 2008, Rich said to Kalich, “What? Do you not eat? You are
wasting away. Your pants don’t even fit you right anymore. You look like a girl.”
Kalich alleges Rich made these remarks while laughing, staring at Kalich’s behind, and
staring and pointing at Kalich’s pants.
On February 13, 2009, Rich asked Kalich whether the human rights sticker on
his vehicle was a “Swedish flag.” Rich asked, “What kind of flag is that on your car, a
Swedish one?” Despite Kalich’s explanation that the sticker was a symbol of equal
rights, Rich persisted in referring to it as a “Swedish flag.”
Kalich v. AT&T
On February 23, 2009, Rich told Kalich he should change his name to Peggy,
Margaret, Mary Ann, or Susan. Rich then said, “No. I still like Virginia. Or how about
Kristine, like your mom?” Rich made these comments in front of Kalich’s employees.
On March 16, 2009, Rich said to Kalich, “You should sew Kristine a quilt.
Come on, Virginia. You know you can sew. Dear, you know you can do it.”
According to Kalich, Rich repeatedly and regularly made comments like those
detailed above, but Kalich was only able to make notes of the comments on isolated
AT&T has a Code of Business Conduct that forbids unlawful harassment of any
kind, including sexual harassment. The Code provides internal procedures by which
employees can report violations. Rather than pursue these internal options, Kalich
retained an attorney in March 2009. Kalich’s attorney sent a letter to Ken Gaffga, Rich’s
supervisor, on March 19, 2009. The letter described Rich’s comments and conduct
towards Kalich and demanded that the conduct cease immediately. The letter further
asked that Kalich “be placed in a work environment free of gender based [sic]
harassment” and that “labor relations and/or AT&T’s counsel contact me forthwith”
regarding resolution of Kalich’s complaints.
On March 25, 2009, Rich allegedly called Kalich a necrophiliac, laughed, and
stated in the presence of Kalich’s employees that Kalich had sex with dead people.
Although Kalich had no further contact with Rich after this incident, Rich allegedly
made similar comments the following day in the presence of several of Kalich’s coworkers. Rich later stated that he confused “narcolepsy,” a condition from which Kalich
apparently suffers, with necrophilia, and that this confusion led him to make a comment
about Kalich being a necrophiliac. At the time he made the necrophilia comment, Rich
was not yet aware of the letter that Kalich’s attorney sent to Gaffga complaining of
Sometime during the first week of April, Kalich requested a thirty-day leave of
absence. Gaffga denied Kalich’s request, but authorized Kalich to take six days off.
Kalich v. AT&T
Also in the beginning of April 2009, AT&T’s equal employment opportunity (“EEO”)
department began an investigation in response to Kalich’s complaint. On April 9, 2009,
Gaffga informed Kalich that Rich would be transferred and would no longer oversee
operations at Kalich’s store. In addition, Rich was given a final written warning for his
inappropriate comments and would be required to take classes focused on promoting a
professional work environment.
On April 13, 2009, while on his leave of absence, Kalich notified AT&T of his
resignation. Kalich explained that the dynamics of the work environment had changed
as a result of the EEO investigation, which included interviews with all of the store
employees. In addition, Kalich feared that, despite being re-assigned to the supervision
of Susan Suppley, he might nevertheless encounter Rich on occasion. Kalich was
uncomfortable with the prospect of future encounters with Rich and, therefore, “for
mental and physical health reasons . . . felt it in [his] best interest to resign.” Kalich’s
last day of employment with AT&T was April 29, 2009.
Kalich contends that Rich’s conduct amounted to sexual harassment that created
a hostile work environment. In his complaint, Kalich sought to impose liability on
AT&T for Rich’s conduct pursuant to ELCRA, Michigan’s civil rights statute. After the
close of discovery, the district court granted AT&T’s motion for summary judgment,
finding that Kalich had failed to present evidence in support of each element of his
claim. Kalich timely appealed.
We review a district court’s order granting summary judgment de novo. Int’l
Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is
proper “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). After
adequate time for discovery and upon motion, summary judgment is proper against a
party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and upon which that party bears the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Kalich v. AT&T
ELCRA prohibits employers from discriminating against employees based on
sex, which includes sexual harassment. See Mich. Comp. Laws § 37.2102; Chambers
v. Trettco, Inc., 614 N.W.2d 910, 915 (Mich. 2000). Michigan law defines “sexual
harassment” as “unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct or communication of a sexual nature” under circumstances
where submission to the conduct or communication is made a “quid pro quo” of gaining
or keeping employment or where the conduct or communication “has the purpose or
effect of substantially interfering with an individual’s employment. . . .” Mich. Comp.
Laws § 37.2103(i).
Sexual harassment that substantially interferes with an individual’s employment
is referred to as “hostile work environment” harassment. Radtke v. Everett, 501 N.W.2d
155, 161 (Mich. 1993). Kalich does not allege that Rich conditioned his continued
employment upon submission to any sexual advances or overtures. Rather, Kalich
alleges that Rich’s conduct created a hostile work environment. To establish a prima
facie case of hostile work environment based on sexual harassment, Kalich was required
to present evidence that: (1) he belonged to a protected group; (2) he was subjected to
communication or conduct on the basis of sex; (3) he was subjected to unwelcome
sexual conduct or communication; (4) the unwelcome conduct or communication was
intended to or did substantially interfere with the plaintiff’s employment or created an
intimidating, hostile, or offensive work environment; and (5) respondeat superior.
Haynie v. State, 664 N.W.2d 129, 133 (Mich. 2003); Chambers, 614 N.W.2d at 915.
In granting AT&T’s motion, the district court found that there was no dispute of
material fact and that Kalich failed to present sufficient evidence on each element of his
claim to withstand summary judgment. The court described Rich’s conduct as “crude,
bullying, [and] despicable” but found that it was “not actionable under the sexual
harassment hostile work environment provisions of ELCRA.” We agree.
Kalich v. AT&T
A. Protected Group
As to the first element of a hostile work environment sexual harassment claim,
Kalich met his burden. The Michigan Supreme Court has held that “all employees are
inherently members of a protected class in hostile work environment cases because all
persons may be discriminated against on the basis of sex.” Haynie, 664 N.W.2d at 133
(quoting Radtke, 501 N.W.2d at 162). Accordingly, Kalich presented sufficient evidence
of the first element of his prima facie case.
B. Communication or Conduct “on the Basis of Sex”
To establish the second element of his hostile work environment claim, Kalich
needed to show that “but for the fact of [his] sex, [he] would not have been the object of
harassment.” Id. (emphasis added) (quoting Radtke, 501 N.W.2d at 163). This element
is derived from the language in section 37.2202(1)(a) of ELCRA which prohibits
discrimination “because of . . . sex.” Id. at 308. Stated differently, a plaintiff must show
that the harassment was gender-based. See Barbour v. Dep’t of Soc. Servs., 497 N.W.2d
216, 218 (Mich. Ct. App. 1993) (per curiam). A plaintiff can make this showing with
evidence that “members of one sex are exposed to disadvantageous terms or conditions
of employment to which members of the other sex are not exposed.” Vickers v. Fairfield
Med. Ctr., 453 F.3d 757, 765 (6th Cir. 2006) (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998)). Harassment or discrimination because of a
person’s sexual orientation or perceived sexual orientation is not prohibited conduct
under ELCRA. Barbour, 497 N.W.2d at 217-18.
In Vickers, we evaluated a male plaintiff’s claim of same-gender sexual
harassment utilizing the Supreme Court’s approach in Oncale.1 We identified three
ways a male plaintiff could establish the “because of sex” element of a hostile work
environment claim based on same-gender sexual harassment: (1) by showing that the
Although Vickers was a case that arose under Title VII, Michigan courts afford substantial
consideration to federal precedent when interpreting analogous provisions of ELCRA. See Chambers, 614
N.W.2d at 917; Radtke v. Everett, 471 N.W.2d at 663; Barrett v. Kirtland Cmty. Coll., 628 N.W.2d 63,
69-70 (Mich. Ct. App. 2001).
Kalich v. AT&T
harasser making sexual advances acted out of a sexual desire; (2) by showing that the
harasser was motivated by general hostility to the presence of men in the workplace; or
(3) by offering “direct comparative evidence about how the alleged harasser treated
members of both sexes in a mixed-sex workplace.” Vickers, 453 F.3d at 765 (quoting
Oncale, 523 U.S. at 80-81).
The district court properly concluded that Kalich failed to establish that Rich’s
conduct towards him was “because of” his gender. In his deposition, Kalich admitted
that Rich made no apparent sexual advances toward him, nor indicated any sexual
interest in him. Kalich did not present any evidence that Rich had a general hostility to
men in the workplace, and Kalich did not offer comparative evidence that Rich generally
treated women in the workplace more favorably than men. In fact, Kalich stated in his
deposition that Rich was rude, aggressive and generally unapproachable towards all
employees. Kalich even recounted a specific instance in which one of his colleagues—a
female manager at another store location—called Kalich in tears after a meeting in which
Rich “yelled and screamed” at her.
By all accounts, Kalich established that Rich created very unpleasant working
conditions for the employees that were in Rich’s chain-of-command. While Kalich
seemed to be the primary target of Rich’s campaign of teasing and name-calling, there
is no evidence that Rich singled Kalich out “because of” his gender. In fact, Kalich
acknowledged in his deposition that he believed Rich made the derogatory comments
because he knew or suspected that Kalich was gay. Under Michigan law, as under Title
VII, sexual orientation is not a protected classification. Barbour, 497 N.W.2d at 217-18.
Thus, harassment or discrimination based upon a person’s sexual orientation cannot form
the basis of a cognizable claim. Id. Moreover, teasing and name-calling, while
inappropriate in a professional environment, are insufficient to state a claim for sexual
harassment. See Schemansky v. California Pizza Kitchen, Inc., 122 F. Supp. 2d 761,
775-76 (E.D. Mich. 2000); Quinto v. Cross and Peters Co., 547 N.W.2d 314, 320-21
(Mich. 1996) (noting that conduct that is demeaning or humiliating but that does not
evidence hostility towards a protected class is not actionable under ELCRA).
Kalich v. AT&T
In sum, the district court properly concluded that Kalich did not present sufficient
evidence on this element of his claim to withstand summary judgment.
C. Unwelcome Sexual Conduct or Communication
In addition to the requirement that he was singled out because of his gender,
Kalich was also required to present evidence that he was “subjected to unwelcome
sexual conduct or communication.” Haynie, 664 N.W.2d at 133. This element is
derived from the language in § 37.2103(i) of ELCRA, which states that “[s]exual
harassment means unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct or communication of a sexual nature. . . .” Id. The Michigan
Supreme Court has held that “actionable sexual harassment requires conduct or
communication that inherently pertains to sex.” Corley v. Detroit Bd. of Educ., 681
N.W.2d 342, 345 (Mich. 2004) (defining “sexual nature”); see also Haynie, 664 N.W.2d
at 135-36; Barrett, 628 N.W.2d at 74-75. Discriminatory conduct that is gender-based
but not sexual in nature does not constitute sexual harassment. Haynie, 664 N.W.2d at
In his brief, Kalich argues:
David Rich’s conduct towards Plaintiff was of an “inherently” sexual
nature because: (1) Rich’s admitted comments to and about Plaintiff that
he was a necrophiliac are by definition of a sexual nature, (2) Rich’s
repeated remarks to Plaintiff that related to his gender and implied that
he was a homosexual when Plaintiff never discussed his sexual
orientation with Rich inherently relate to sex because they were intended
to “bring him out of the closet,” and (3) Rich made some of his offensive
remarks to Plaintiff in such a manner that manifested his sexual desire for
Putting aside the necrophiliac comment, which is discussed below, Kalich contends that
comments designed to “bring him out of the closet” as a homosexual man inherently
relate to sex. Kalich cites Barbour for the proposition that such comments “state a
claim for same gender [sic] hostile work environment sexual harassment because such
conduct directly relates to gender.”
Kalich v. AT&T
Kalich’s reading of Barbour is simply wrong. Barbour filed a complaint
pursuant to ELCRA, alleging that throughout his employment with the defendant he was
the victim of sexual harassment by co-workers and supervisors. 497 N.W.2d at 217.
Barbour claimed he was subjected to various forms of verbal and nonverbal harassment
in efforts to get him to “come out of the closet . . . and to engage in homosexual sex.”
Id. There was no dispute that Barbour’s sexual orientation constituted the subject matter
of the harassment. Id. The trial court concluded that harassment or discrimination based
upon a person’s sexual orientation was not conduct prohibited by ELCRA and granted
summary disposition in favor of the defendant. Id. at 218. The Michigan Court of
Appeals affirmed this portion of the trial court’s judgment. Id.
However, the court of appeals found that the trial court erred in dismissing
another portion of Barbour’s complaint “insofar as it alleged specific homosexual
advances directed to him by his supervisor.” Id. (emphasis added). The court found that
“these actions were directly related to plaintiff’s status as a male, and thus render[ed] the
act applicable.” Id. Therefore, Barbour is better understood as standing for the
proposition that, regardless of the target’s sexual orientation, a supervisor’s unwanted
sexual advance is conduct that could state a claim for hostile work environment sexual
harassment.2 After all, it is conduct that is directed at a particular person “because of”
that person’s gender (i.e., the gender to which the harasser is attracted), and it is conduct
that is inherently sexual in nature. Therefore, the part of Barbour’s complaint that stated
a cognizable claim was based not on Barbour’s status as a homosexual or on the
harasser’s motivation to “bring him out of the closet,” but rather on the fact that Barbour
was subjected to unwanted sexual advances, conduct which was unquestionably “sexual
in nature” and “because of” Barbour’s gender.
Kalich has not alleged that Rich made any sexual advances towards him. He
presented no evidence that Rich’s teasing was borne out of a sexual desire for Kalich or
even that Rich himself is homosexual. Although Kalich argues in his brief that the
Of course, the conduct would still have to be either pervasive enough or of such an extreme
nature as to satisfy the fourth element of a “hostile environment” claim.
Kalich v. AT&T
comments referring to him as a girl “demonstrate Rich’s sexual desire for him,” he
bases this conclusion on the fact that “Rich made these comments while pointing and
staring at [Kalich’s] behind.” According to Kalich, “It is not a leap to believe that Rich
was sexually attracted to [him] because [Rich] was staring at [his] behind while
commenting about his physique.” While this argument boasts a certain logic, we must
base our decision on evidence, and the evidence of record does not support the
conclusion Kalich urges. In Kalich’s deposition, counsel for AT&T pointedly asked
him, “Did Rich ever indicate that he had a sexual interest in you?” Kalich’s response
was an unequivocal “no.” Kalich’s contention on appeal that a certain remark “could
arguably manifest Rich’s sexual desire for [him],” is thus belied by his prior testimony
to the contrary. In any event, the standard is not whether certain conduct or comments
could “arguably manifest” sexual desire, but whether the conduct or comments
“inherently pertain to sex.” Rich’s comments do not meet that standard.
Viewing the evidence in the light most favorable to Kalich, the vast majority of
the comments Kalich cited in his complaint cannot be construed as sexual in nature.
Rich’s remarks about Kalich’s glasses, or referring to Kalich by various female names,
or about his “cute” dog do not inherently pertain to sex, nor do Rich’s remarks about the
fit of Kalich’s clothes, his sewing abilities, or that he was “wasting away” and “looked
like a girl.” The district court acknowledged that Rich’s comment referring to Kalich
as a necrophiliac, however, was sexual in nature. Nevertheless, Kalich presented no
evidence that Rich directed this comment at him “because of” his gender. Without
evidence of some gender-based animus, the mere fact that Rich made a comment to
Kalich that was sexual in nature cannot form the basis of a cognizable claim. See
Oncale, 523 U.S. at 80 (“We have never held that workplace harassment . . . is
automatically discrimination because of sex merely because the words used have sexual
content or connotations. The critical issue . . . is whether members of one sex are
exposed to disadvantageous terms or conditions of employment to which members of the
other sex are not exposed.”) (internal citations omitted).
Kalich v. AT&T
D. Intimidating, Hostile or Offensive Work Environment
Another essential component of a hostile work environment claim requires the
plaintiff to show that the unwelcome sexual conduct or communications were intended
to or did in fact substantially interfere with the plaintiff’s employment or created an
intimidating, hostile, or offensive work environment. Haynie, 664 N.W.2d at 133. “The
essence of a hostile work environment action is that one or more supervisors or coworkers create an atmosphere so infused with hostility toward members of one sex that
they alter the conditions of employment for them.” Radtke, 501 N.W.2d at 163 (citations
omitted). The existence of a hostile work environment “shall be determined by whether
a reasonable person, in the totality of the circumstances, would have perceived the
conduct at issue as substantially interfering with the plaintiff’s employment or having
the purpose or effect of creating an intimidating, hostile, or offensive work
environment.” Id. at 167. Factors relevant to the inquiry include: the frequency of the
discriminatory conduct; the conduct’s severity; whether the conduct was physically
threatening or humiliating or merely an offensive utterance; and whether the conduct
unreasonably interfered with the employee’s work performance. See Quinto, 547
N.W.2d at 320 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Except in
the case of extreme incidents such as rape or sexual assault, a single, isolated event is
typically insufficient to create a hostile work environment. See Radtke, 501 N.W.2d at
168 & n.40.
The single necrophilia comment that Rich directed at Kalich, the only comment
Kalich cites that could conceivably constitute sexual harassment, is not the sort of
“extremely traumatic experience” that Michigan courts recognize as creating a hostile
work environment based on a single occurrence. Under the applicable standard, a
reasonable person would not perceive this single remark as being so severe and extreme
as to create an objectively hostile work environment. The remainder of Rich’s remarks,
though unprofessional and perhaps subjectively hurtful, embarassing, or offensive to
Kalich, are not actionable under ELCRA because, as discussed above, they are not
Kalich v. AT&T
inherently sexual in nature.
Therefore, the record before the district court was
insufficient to withstand summary judgment on this element of Kalich’s claim as well.
E. Respondeat Superior
The final element of the prima facie case for hostile work environment sexual
harassment requires the plaintiff to establish that the employer had either actual or
constructive notice of the hostile work environment and failed to take prompt and
adequate remedial action. Betts v. Costco Wholesale Corp., 558 F.3d 461, 470-71 (6th
Cir. 2009) (citing Sheridan v. Forest Hills Pub. Schs., 637 N.W.2d 536, 542 (Mich. Ct.
App. 2001)). “[A]n employer can be vicariously liable for a hostile work environment
only if it ‘failed to take prompt and adequate remedial action upon reasonable notice of
the creation of a hostile work environment.’” Elezovic v. Ford Motor Co., 697 N.W.2d
851, 863 (Mich. 2005) (emphasis added) (quoting Chambers, 614 N.W.2d at 918). To
establish actual notice, a plaintiff must show that he reported the harassment to someone
in “higher management”—that is, to “someone in the employer’s chain of command who
possesses the ability to exercise significant influence in the decision-making process of
hiring, firing, and disciplining the offensive employee.” Sheridan, 637 N.W.2d at
542–43. A plaintiff can establish constructive notice by showing that the harassment
was so pervasive as to warrant an inference that the employer had actual knowledge or
to charge the employer with constructive knowledge. Sheridan, 637 N.W.2d at 542.
When determining the adequacy of the employer’s remedial action, the proper inquiry
is “whether the action reasonably served to prevent future harassment of the plaintiff.”
Chambers, 614 N.W.2d at 919.
AT&T did not have actual notice of Kalich’s complaint until sometime on or
after March 19, 2009, the date that Kalich’s attorney drafted the letter to Gaffga. On
March 27, 2009, Marybeth Dunne, a Senior EEO Consultant with AT&T, was assigned
to conduct the investigation into Kalich’s complaint. Dunne instructed Rich not to visit
Kalich v. AT&T
Kalich’s store during the pendency of the investigation, and Rich complied.3 In the
course of her investigation, Dunne interviewed Kalich, Rich, and the other employees
of the Clarkston store. During an interview, Dunne specifically asked Kalich what type
of resolution he was seeking, to which Kalich responded, “I don’t know.” Dunne
completed her investigation on April 7, 2009 and concluded that Rich had made
“inappropriate comments” to Kalich. Dunne recommended that AT&T issue Rich a
disciplinary warning, require Rich to attend special training, and remove Rich from
Kalich’s chain-of-command, all of which AT&T did. On April 9, 2009, AT&T informed
Kalich that Susan Suppley would be his new supervisor. Four days later, Kalich notified
Gaffga of his resignation.
Based on the record, Kalich presented no evidence that AT&T failed to
adequately rectify the problem upon receiving notice. Kalich’s brief emphasizes that
AT&T did not formalize Rich’s transfer or issue the final disciplinary warning until
nearly one month after his letter of complaint, but it is clear that an investigation began
within a week of Kalich’s letter and concluded only ten business days later. Performing
an adequate investigation, which in this case included an interview of every employee
at the Clarkston store, takes time. Moreover, upon the initiation of the investigation,
AT&T instructed Rich to have no further contact with Kalich, and ultimately, AT&T
permanently reassigned Rich to a different region. This resolution certainly was
designed to prevent future harassment of Kalich. Thus, under the applicable standard,
AT&T took adequate remedial measures and there is no basis upon which to impose
respondeat superior liability. See Chambers, 614 N.W.2d at 919.
Because Kalich has failed to produce sufficient evidence to establish each
element of his claim, we AFFIRM the district court’s summary disposition in favor of
Rich made the necrophilia comment to Kalich during the one-week interim between the time
Kalich’s attorney drafted the letter and the time AT&T launched its formal investigation. At the time, Rich
was unaware of Kalich’s complaint.
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