Kathleen Wierengo v. Akal Security, Inc.

Filing

OPINION filed : The district court's denial of Wierengo's motion to compel and its grant of summary judgment in favor of Akal is AFFIRMED, decision not for publication. Julia Smith Gibbons, Jeffrey S. Sutton and Helene N. White, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0713n.06
No. 13-1890

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KATHLEEN WIERENGO,

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Plaintiff-Appellant,
v.
AKAL SECURITY, INC.,
Defendant-Appellee.

Sep 10, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
WESTERN DISTRICT OF
MICHIGAN

BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Kathleen Wierengo formerly worked as a
court security officer for Akal Security, Inc. After Akal fired her, Wierengo sued under Title VII
alleging that Akal discriminated against her on the basis of sex, subjected her to a hostile work
environment, and retaliated against her after she filed an internal grievance and EEOC
complaint. The district court granted Akal’s motion for summary judgment. We affirm.
I.
Akal is a private security company that frequently contracts with the U.S. Marshals
Service. As part of one such contract, Akal provides security at the federal building and
courthouse in Grand Rapids, Michigan.
In 2002, Akal hired Wierengo as a court security officer (CSO) at the Grand Rapids
courthouse. Before coming to Akal, Wierengo worked as a police officer for the City of Grand

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Rapids for twelve years. She also worked in various capacities at a variety of other businesses,
including owning a rental and insurance business, managing an asphalt paving company, owning
a cleaning business, and running a Chinese food take-out business.
Wierengo remained in the position of CSO throughout her time with Akal. She says that
Akal refused to promote her nine times because she was a woman. Akal responds that Wierengo
either never applied for the promotions or was insufficiently qualified for the positions. In 2005,
Akal assigned Wierengo to the courthouse’s security control room. There, Wierengo worked
under site supervisor Robert Czarnecki and lead security officer Jerry Blumenstein. She also
worked with Ted Quist, a fellow CSO. Most of Wierengo’s lawsuit concerns various actions
taken by these Akal employees.
Throughout Wierengo’s time in the control room, Blumenstein made unwelcome
comments. For example, Blumenstein complained if coffee was not ready in the morning, and
he repeatedly told Wierengo that making coffee was her responsibility. And he once said to her,
“Since you don’t have anything to do, you need to dust the office.” He also told her that her car
was “ratty,” that her hair was “ratty” and “looked like hell,” and that one of her purses “looked
like hell.”
In April 2006, Czarnecki placed a copy of a 1955 HouseKeeping Monthly article in
Wierengo’s drawer and posted it on the board in the CSO break room. The article was titled
“The Good Wife’s Guide” and offered the following advice:





Be happy to see [your husband].
Listen to him . . . . Let him talk first—remember, his topics of conversation
are more important than yours.
Arrange his pillow and offer to take off his shoes. Speak in a low, soothing
and pleasant voice.
Don’t ask him questions about his actions or question his judgment or
integrity. Remember, he is the master of the house and as such will always
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exercise his will with fairness and truthfulness. You have no right to question
him.
Czarnecki highlighted the article’s final point—“A good wife always knows her place.”
Wierengo testified that Czarnecki and Blumenstein would often repeat similar sentiments to her.
Seven months later, Quist made an unwelcome physical advance.

According to

Wierengo:
[O]ut of nowhere [Quist] pinned my body up against the drawer with his body. I
was unable to move forward or backward because I was pinned so tight. [Quist]
then tried to kiss me on the mouth so I turned my face . . . into the drawers so he
started to kiss me on my left cheek. While he was kissing my cheek I was trying
to pry my body out, but was unable to because I was pinned down so tight. . . .
After [Quist] finished kissing on me he stepped back and stated “it’s only a
birthday kiss.”
Wierengo submitted her first grievance on December 19, 2006. In it, she stated that she
was submitting a grievance because she was “past [sic] over for three (3) supervisor positions for
which I am qualified. I need to know why I did not receive any of these positions.” She did not
mention or allege sexual harassment. Wierengo first complained to a manager about the alleged
sexual harassment on February 22, 2007. Her letter did not identify the alleged harassers or
specify the nature of the harassment. It referred to her December 2006 grievance, stated for the
first time that the “grievance involves both Job Discrimination and Sexual Harassment,” and
stated that she had not received a response. The record reflects that Akal tried to talk to
Wierengo at least two times about her grievance, but Wierengo refused to talk with the company.
Instead, Wierengo filed an EEOC sexual-harassment charge on March 12, 2007. The charge did
not identify the alleged harassers or Quist’s physical attack. It stated that she had been subjected
to sexual harassment in “the form of being told to make coffee, that the place needed dusting,
that a woman’s place is to make her man’s meals and clean and comments made about my purse,

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to name a few.” She also stated that she had applied for numerous promotions but less-qualified
males were promoted instead. (Id.) Akal received a copy of the charge on April 2, 2007.
Wierengo did not tell anyone about Quist’s advance until March 30, 2007—almost five
months after the fact. The day after it heard about Wierengo’s allegations, Akal transferred
Quist to another building and told him not to contact Wierengo. Three weeks later, Akal
interviewed Wierengo about the advance. In this interview, Wierengo told Akal that Quist still
parked in the same parking lot as she did. Wierengo reported that one time Quist had stared at
her in the parking lot and had tried to block her path as she was exiting. Akal immediately told
Quist to park in a different garage.
After hearing that Wierengo was crying at work while carrying a loaded gun, Akal placed
her on a paid leave of absence while her complaints were being investigated. Akal then sent an
investigator to conduct additional interviews. The investigator interviewed over twenty people.
Quist “continued to stress his innocence” and told the investigator that he had merely given
Wierengo a “platonic hug on her birthday.” The investigator concluded that Wierengo’s sexual
assault and sexual harassment claims were unsubstantiated.
On June 1, 2007, Akal told Wierengo she could return to work. Akal reassured Wierengo
that even though it could not substantiate her allegations, it had made Quist’s transfer permanent,
barred him from using the parking lot, and required him to review its anti-harassment policy.
Akal also conducted a mandatory harassment-prevention training session with all the CSOs.
According to Wierengo, “the daily environment was intolerable” when she returned to
work.

Two months later, Wierengo wrote Akal about “a progression of deteriorating

professional conduct by fellow employees.”

Wierengo noted that several employees were

“shunning” her and that she suspected it was in retaliation for her grievance petition. Akal asked

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for more information.

In response Wierengo listed several times when coworkers and

supervisors left rooms immediately after she entered them or left rooms after finding her in them.
After receiving this letter, Akal did not continue its investigation.
Akal did, however, investigate a complaint made against Wierengo by thirteen of her
male coworkers. They complained that “Wierengo caused a hostile working environment for all
of the other officers because of her ‘constant note taking and stand-off attitude.’” They felt
Wierengo was “posturing herself to file a civil action against the company as well as the majority
of her coworkers.” Akal did not tell Wierengo about this complaint, and its investigator did not
interview her.
Wierengo wrote Akal again on December 6, 2007. She said that “[t]he Retaliation
through Shunning continues by both my Supervisors and Fellow CSO’s and has grown
progressively worse. . . . Also, my supervisors are not informing me of pertinent information
concerning the safety and well being of myself and others . . . .” Wierengo’s letter did not
provide any details regarding her concern about “safety,” but in an affidavit prepared in response
to Akal’s motion for summary judgment she described an August 13, 2007, incident when a
prisoner threatened to shoot a CSO. Although Blumenstein warned other CSOs about the threat,
he did not tell Wierengo, who was in the control room at the time.
On December 18, 2007, twelve days after Wierengo’s last letter, Wierengo asked to leave
work early for an appointment. Her replacement arrived late, so she rushed out of the room.
Accounts about what happened next vary. Akal says that Wierengo intentionally bumped into
another CSO on her way out of the control room. She then rushed into the public lobby,
shouting obscenities. Wierengo denies Akal’s version of the incident, maintaining that she did
not touch the other CSO or use offensive language in the lobby.

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The U.S. Marshals Service asked Akal to investigate. As part of that investigation,
Wierengo gave a recorded statement to the investigator. In her statement, she said it was
“possible” her shoulder brushed against the replacement CSO. And when asked if she yelled
obscenities in the lobby, Wierengo responded, “I don’t know.” After reviewing security camera
footage and conducting more interviews, Akal’s investigator concluded that Wierengo probably
ran into the replacement CSO with her shoulder and that she shouted obscenities in a public part
of the courthouse.
After reviewing the report, Akal’s Vice President of Human Resources, Janet Gunn,
decided that Wierengo should be suspended for five days, and recommended such action to the
U.S Marshals Service. The U.S. Marshals Service disagreed with Gunn’s recommendation and
directed that Wierengo “be immediately and permanently remove[d] . . . from performance under
this contract.” Because Akal did not have another court security contract in Michigan, Akal fired
Wierengo. Wierengo appealed, and in her letter submitting Wierengo’s appeal to the U.S.
Marshals Service, Gunn stated that Akal stood by its recommendation that a five-day suspension,
rather than termination, would be an appropriate response to Wierengo’s failure to meet
performance standards. The U.S. Marshals Service denied Wierengo’s appeal.
Wierengo sued Akal, bringing claims of sex discrimination, hostile work environment,
and retaliation under state and federal law. After discovery concluded, Akal moved for summary
judgment. The district court granted Akal’s motion. Wierengo now appeals.
II.
We review a district court’s grant of summary judgment de novo. Allstate Ins. Co. v.
Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 453 (6th Cir. 2001).

Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party
bears the burden of showing that there is an absence of evidence to support the nonmoving
party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In deciding motions for
summary judgment, we draw all reasonable inferences in favor of the nonmovant. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The ultimate inquiry is
‘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.’” Phillips v. Roane
Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986)).
On appeal, Wierengo challenges the district court’s grant of summary judgment on each
of her claims. We consider each in turn.1
III.
Wierengo argues that Akal discriminated against her on the basis of sex when it passed
her over for nine promotions. There are two types of Title VII discrimination claims: disparate
treatment and disparate impact. Huguley v. Gen. Motors Corp., 52 F.3d 1364, 1370 (6th Cir.
1995). Disparate treatment is present when an employer treats an employee less favorably than
others because of the employee’s race, religion, or sex. Id. Disparate impact happens when an
employer’s facially neutral employment practice has a disproportionately negative effect on a
protected group of people. Id.
Although Wierengo argues both theories on appeal, we consider only Wierengo’s
disparate-treatment claim. Wierengo relied on a disparate-treatment theory of the case before the
1

Akal moved for summary judgment on Wierengo’s federal- and state-law claims.
Wierengo did not discuss her state-law claims in her response brief, and the district court held
that they were abandoned. We agree. See Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372
(6th Cir. 2013).
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district court. She repeatedly alleged in her complaint that Akal intentionally refused to promote
her because she was a woman; nowhere did she assert that she lost out on the promotions as a
result of a neutral practice. See Reminder v. Roadway Exp., Inc., 215 F. App’x 481, 485 (6th Cir.
2007). Likewise, in response to Akal’s motion for summary judgment, Wierengo only made
arguments based on disparate treatment. Wierengo cannot add new claims on appeal. See
Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir. 2007).
In support of her disparate-treatment claim, Wierengo offers only her affidavit, which
states:
I was either passed up or never given the opportunity to apply for 8–9 promotions
as follows:
Promotion #1: After LCSO [Lead Court Security Officer] Bayne retired, CSO
Czarnecki announced that he would be LCSO. There was no posting for this
promotion. (2004).
Promotion #2: CSO Czarnecki announced that CSO Blumenstein will be Assistant
LCSO. There was no posting for this promotion. (2004).
Promotion #3: CSO Larry Nyquist was promoted to lead CSO for new
Bankruptcy Court. There was a posting for this position in the Fall 2005, Plaintiff
applied; CSO Nyquist was given the promotion 6 months earlier. (2005)
Promotion #4: CSO Czarnecki was promoted to site supervisor. There was no
posting for this position. (2005)
Promotion #5: CSO Blumenstein was promoted to LCSO. There was no posting
for this job.
Promotion #6: CSO Cuperus is promoted to Assistant LCSO.
posting, Plaintiff applied for this position. (2006)

There was a

Promotion #7: CSO Bolden is promoted to Assistant LCSO at the Bankruptcy
Court. There was no posting. Plaintiff applied for this position. (2006)
Promotion #8: Assistant LCSO Cuperus is promoted to Site Supervisor. (2006)
There was a posting and Plaintiff applied. (2006)

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Promotion #9: CSO Quist is promoted to Assistant LCSO in November or
December 2006 or at a later date. CSO Quist and others at Akal have given
conflicting statements about this, but CSO Quist told the Grand Rapids Police
Department that he obtained this promotion in 2006.
The district court refused to consider seven of these promotions because they happened
more than 300 days before Wierengo complained to the EEOC. See 42 U.S.C. § 2000e-5(e)(1)
(establishing a 300-day statute of limitation). Wierengo does not mention, much less challenge,
this determination on appeal. Consequently, she has forfeited consideration of the issue. See
Clements v. Brunton, 230 F.3d 1357, 2000 WL 1359628, at *1 (6th Cir. 2000) (unpublished table
disposition).
That leaves the 2006 hiring of a new site supervisor and assistant lead security officer.
Under the McDonnell Douglas framework, Wierengo must first make out a prima facie case of
discrimination. To do so, she must show: (1) she is a member of a protected class; (2) she
applied for and was qualified for the promotion; (3) she was denied the promotion; and (4) other
employees of similar qualifications who were not members of the protected class received
promotions around the time same. Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 812–13 (6th
Cir. 2011).
We agree with the district court and hold that Wierengo has failed to establish her prima
facie case. First, Wierengo has not shown that she was qualified for either promotion. She
claims that she has “a broad range of skills, experience and depth,” but she does not describe
what those skills are, much less explain how they qualify her for a job as a site supervisor or lead
security officer. In fact, Wierengo does not even discuss the basic duties of the two positions.
We “simply cannot make assumptions about her qualifications.” See Peltier v. United States,
388 F.3d 984, 990 (6th Cir. 2004).

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Even assuming Wierengo was qualified for the positions, she has not shown that she had
similar qualifications to Cuperus and Quist, the two men who were hired instead. See White v.
Columbus Metro. Hous. Auth., 429 F.3d 232, 243 (6th Cir. 2005) (“Some comparison between
[the plaintiff and the person ultimately selected] is therefore necessary in considering the fourth
prong of the prima facie case. Engaging in such a comparison does not impermissibly conflate
the two stages of the McDonnell Douglas test . . . .”). Wierengo’s briefs in the district court and
on appeal simply state that she “had qualifications similar to those who were selected.” She does
not provide any evidence discussing Quist’s promotion to assistant lead security officer or his
qualifications.

And, as pointed out by Akal, Cuperus—who was promoted to new site

supervisor—had thirty years of police experience, including fourteen years of supervisory
experience as a sergeant and detective sergeant. Comparatively, Wierengo only had twelve years
of police experience and no experience in a police supervisory role. Although Wierengo’s
burden at the prima facie stage is not onerous, she must provide some evidence supporting all
four elements of her case. She has not done so.
IV.
Wierengo next argues that the district court incorrectly granted summary judgment in
favor of Akal on her hostile-work-environment claim. To survive summary judgment, Wierengo
must show that: “(1) she was a member of a protected class; (2) she was subjected to unwelcome
discriminatory harassment; (3) the harassment complained of was based on sex; (4) the charged
sexual harassment created a hostile work environment; and (5) [Akal] is liable.” Randolph v.
Ohio Dep’t of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006). Even assuming Wierengo can
establish the first four elements of a hostile-work-environment claim, Wierengo cannot establish
the fifth element.

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An employer’s liability for a hostile work environment depends in part on whether the
harassment was committed by a coworker or supervisor. Williams v. Gen. Motors Corp., 187
F.3d 553, 562 (6th Cir. 1999).

A plaintiff can establish liability based on a supervisor’s

participation in the harassment or the employer’s negligence in discovering and remedying
coworker harassment, or both. See Waldo v. Consumers Energy Co., 726 F.3d 802, 813 n.2 (6th
Cir. 2013). If the employee alleges both as bases for liability, the court must separate the
conduct. See Williams, 187 F.3d at 562.
Wierengo does not point to any evidence suggesting that any improper action was taken
by a “supervisor,” as that term applies to hostile-work-environment claims. “‘[S]upervisor’ is a
term of art that denotes more than an individual with a higher rank, a superior title, or some
oversight duties.” Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 390–91 (7th Cir. 2010).
Wierengo must provide evidence showing that Quist, Czarnecki or Blumenstein had the power to
take “tangible employment action” against her. See Vance v. Ball State Univ., 133 S. Ct. 2434,
2439 (2013). Because she has not done so, we analyze her claim using the standard for coworker
liability. See Waldo, 726 F.3d at 813 n.2; Montgomery, 626 F.3d at 390.
Under this standard, Wierengo must establish that Akal knew or should have known of
the harassment yet failed to take prompt and appropriate corrective action.

Hawkins v.

Anheuser-Busch, Inc., 517 F.3d 321, 338 (6th Cir. 2008). When an employer takes action to
address known sexual harassment by coworkers, it can only be liable if “‘its response manifests
indifference or unreasonableness in light of the facts the employer knew or should have
known.’” Id. (quoting Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872–73 (6th Cir.
1997)).

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We agree with the district court that Akal responded appropriately to Quist’s alleged
advance.

Wierengo admits that she did not report the advance until five months after it

happened. And as soon as Akal found out, it immediately reassigned Quist and started an
investigation. Similarly, when Wierengo told Akal about the parking incident, Akal again took
immediate action and ordered Quist to park elsewhere. Akal did not have a duty to ensure that
Wierengo and Quist were separated at all times. See Mullins v. Goodyear Tire & Rubber Co.,
291 F. App’x 744, 749 (6th Cir. 2008) (refusing to impose Title VII liability for failing to keep
two employees separated). But even after Akal’s internal investigation found that Wierengo’s
claims were largely unsubstantiated, Akal continued to take corrective action. It made Quist’s
reassignment permanent, continued to ban him from the parking garage, and required that Quist
and others undergo sexual harassment training. Nothing about Akal’s response suggests that it
was indifferent or unreasonable.
Akal also took appropriate corrective measures as to the other harassing conduct.
Wierengo testified that she first complained about sexual harassment to a manager on February
22, 2007.2 This letter did not name the alleged harassers or describe the alleged harassment.
Akal made efforts to discuss the allegations with Wierengo, but Wierengo refused to cooperate.
It is unclear what actions Wierengo expected Akal to take when Akal did not know the identity
of the harassers or even the nature of the alleged harassment. Akal cannot be said to have acted
indifferently or unreasonably “in response to events to which it was not given an opportunity to
respond.” Mullins, 291 F. App’x at 750. Indeed, when Akal received yet another complaint
2

Wierengo later submitted an affidavit claiming that she complained much earlier. But
the district court correctly refused to consider it. See Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448
F.3d 899, 908 (6th Cir. 2006) (“A directly contradictory affidavit should be stricken unless the
party opposing summary judgment provides a persuasive justification for the contradiction.”). In
any event, Wierengo does not argue that the district court erred by not considering this portion of
her affidavit.
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about sexual harassment (the Quist incident), it immediately sent an investigator. We therefore
hold that Wierengo has failed to provide any basis to hold Akal liable for the alleged harassment.
V.
To establish a prima facie case of retaliation, Wierengo must show that (1) she engaged
in protected activity; (2) Akal knew of her exercise of the protected right; (3) she suffered an
adverse employment action; and (4) there was a causal connection between the protected activity
and the adverse employment action. Hawkins, 517 F.3d at 345. In the retaliation context,
“adverse employment action” is defined as any “conduct that would have ‘dissuaded a
reasonable worker from making or supporting a charge of discrimination.’”

Id. (quoting

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 60 (2006)). An employer can be held
responsible for a coworker’s retaliatory conduct if:
(1) the coworker’s retaliatory conduct is sufficiently severe so as to dissuade a
reasonable worker from making or supporting a charge of discrimination,
(2) supervisors or members of management have actual or constructive
knowledge of the coworker’s retaliatory behavior, and (3) supervisors or members
of management have condoned, tolerated, or encouraged the acts of retaliation, or
have responded to the plaintiff’s complaints so inadequately that the response
manifests indifference or unreasonableness under the circumstances.
Id. at 347.
If Wierengo establishes her prima facie case, the burden of production shifts to Akal to
“‘articulate some legitimate, nondiscriminatory reason’” for the adverse employment action. See
Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (quoting Morris v. Oldham Cnty. Fiscal
Ct., 201 F.3d 784, 792 (6th Cir. 2000)). If Akal satisfies its burden, Wierengo must show that
the employer’s reason “‘was not the true reason for the employment decision.’” Id. (quoting Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

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A.
Wierengo first argues that she was “shunned and ostracized” by Blumenstein and
Cuperus, as well as most of her fellow CSOs. She does not provide many examples of this
“shunning.” From her affidavit, it seems like the majority of the “shunning” consisted of
coworkers avoiding her during the work day.

But “[a]n employee’s decision to report

discriminatory behavior cannot immunize that employee from those petty slights or minor
annoyances that often take place at work and that all employees experience.” Burlington N. &
Santa Fe Ry. Co., 548 U.S. at 68; see also, e.g., Creggett v. Jefferson Cnty. Bd. of Educ., 491 F.
App’x 561, 569 (6th Cir. 2012) (“Creggett’s perception that Brown shunned and avoided him is
not a materially adverse action.”). Similarly, the complaint made against Wierengo by thirteen
of her coworkers, without more, does not rise to the level of an adverse employment action.
Wierengo does not allege that this complaint resulted in any sort of “injury or harm” to her
professionally or personally. See id. at 67 (“The antiretaliation provision protects an individual
not from all retaliation, but from retaliation that produces an injury or harm.”). And although
Akal investigated the complaint, it ultimately took no action on it. It is unlikely that a reasonable
employee would be dissuaded from filing a discrimination complaint in these circumstances.
One act, however, is potentially more serious.

Wierengo says that Lead CSO

Blumenstein intentionally failed to tell her about a threat in the building. As a Lead CSO,
Blumenstein did not have the power to take adverse employment actions and therefore was not
Wierengo’s supervisor. See Vance, 133 S. Ct. at 2439, 2443; see also R. 83-2, Gunn Aff. ¶ 4.
Because Blumenstein was not Wierengo’s supervisor, Akal cannot be held liable for his conduct
unless supervisors or members of Akal’s management had actual or constructive knowledge of
Blumenstein’s conduct and tolerated it, or responded inadequately to Wierengo’s complaints.

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Hawkins, 517 F.3d at 347. That cannot be claimed here where Wierengo has identified nothing
in the record showing that she, or anyone, reported the incident to Akal or otherwise described it
to a supervisor. Accordingly, Wierengo has not established a prima facie of retaliation.
B.
Wierengo briefly mentions the fact that she was placed on paid administrative leave
during Akal’s investigation of her sexual-harassment and assault claims in the context of her
retaliation argument. Read liberally, this can be construed as a new retaliation claim. However,
Wierengo did not include these facts in her complaint or argue them on summary judgment.
Again, Wierengo cannot add new claims on appeal. See Bridgeport Music, Inc., 508 F.3d at 400.
Even assuming Wierengo’s claim can proceed, she has not established that the paid
administrative leave was pretextual. Akal argues that it placed her on administrative leave
during its investigation because Wierengo was observed crying while in uniform and carrying a
loaded gun.

Wierengo does not deny these facts.

appropriate response.

This is beside the point.

Instead, she argues that tears were an
We have upheld placements on paid

administrative leave for similar reasons, see Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d
584, 597 (6th Cir. 2007) (collecting cases and holding that a pending investigation is sufficient to
warrant brief placement on paid leave), and Wierengo does not offer any evidence suggesting
that Akal had any other motive.
C.
Lastly, Wierengo argues that the district court erred by granting summary judgment on
her retaliatory-discharge claim. We disagree. Even assuming that she established her prima
facie case, Wierengo has failed to show that there is a genuine issue of material fact as to pretext.

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On December 21, 2007, at the direction of the U.S. Marshals Service, Janet Gunn, Akal’s
Vice President of Human Resources placed Wierengo on unpaid administrative leave pending
investigation of the December 18 lobby incident. After thoroughly reviewing the investigator’s
report about the incident, Gunn recommended to the U.S. Marshals Service that Wierengo
receive a five-day suspension. The U.S. Marshals Service rejected the recommendation and
directed Akal to permanently remove Wierengo from performance on its contract. Wierengo
questions the validity of the report, arguing that it does not accurately describe the events. But
even taking Wierengo’s arguments as true, “[a]s long as an employer has an honest belief in its
proffered nondiscriminatory reason . . . , the employee cannot establish that the reason was
pretextual simply because it is ultimately shown to be incorrect.” Majewski v. Automatic Data
Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). The touchstone of the honest-belief
doctrine is whether

supervisors reasonably relied on particularized facts available to the

company and whether they made a “‘reasonably informed and considered decision.’” Abdulnour
v. Campbell Soup Supply Co., 502 F.3d 496, 503 (6th Cir. 2007) (quoting Smith v. Chrysler
Corp., 155 F.3d 799, 807 (6th Cir. 1998)).
Akal is protected by the honest-belief doctrine.

At the time she made the

recommendation to suspend Wierengo, Gunn had a full report of the incident in front of her. The
report included interviews with eight people.

It also included a statement from Wierengo

admitting that it was “possible” she had bumped shoulders with another CSO and that she
“didn’t know” if she had yelled obscenities in a public part of the courthouse. The fact that
Wierengo now firmly insists that she did not bump her coworker’s shoulder or yell obscenities in
the courthouse is irrelevant to what Gunn believed at the time she made the recommendation.
Likewise, the fact that Wood or Wierengo’s coworkers may have falsified the report, without

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more, is not enough to show pretext. See Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 503
(6th Cir. 2009) (holding that even if all of the plaintiff’s coworkers lied to the employer, the
employer still was not liable if it acted upon an honest belief in its non-discriminatory reason and
made a reasonably informed and considered decision). Wierengo has provided no evidence
showing that Gunn knew or should have known to doubt the report.
Similarly, Wierengo has failed to show that Akal’s decisions to place Wierengo on
administrative leave and fire her were pretextual. As pointed out by Akal, the U.S. Marshals
Service directed that Wierengo be temporarily removed from duty at the courthouse pending the
outcome of the investigation. And, after receiving the report and Akal’s suggested course of
action, the U.S. Marshals Service demanded that Wierengo be permanently removed from
security detail at the courthouse. Akal did not have any other court security contracts in
Michigan at the time and therefore had to fire Wierengo. Following neutral company policy and
contractual obligations are legitimate, nondiscriminatory reasons. See Blackshear v. Interstate
Brands Corp., 495 F. App’x 613, 618 (6th Cir. 2012); Hollins v. Atl. Co., 188 F.3d 652, 661 (6th
Cir. 1999). Wierengo’s speculation that Akal somehow “improperly tainted the opinion of the
U.S. Marshals Service” is not enough to create an issue of fact as to whether this reason was
pretextual.
VI.
Wierengo also appeals the district court’s denial of her motion to compel. The court
determined that Wierengo’s motion was “baseless.” It chastised Wierengo for claiming that
Akal delayed discovery, noting that Wierengo waited more than three months to send her first
discovery requests. And it rejected Wierengo’s arguments that Akal had improperly failed to
produce relevant documents and a videotape. The district court was understandably frustrated

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with Wierengo’s motion, which was forty-seven pages long and contained “scattered and
circuitous narrative set within a series of unsupported allegations and unreasonable grievances.”
The court encouraged Akal to submit a motion for attorneys’ fees under Rule 37(a)(5)(B). Akal
took the court’s advice, and the district court ordered Wierengo to pay Akal $7,525 as a sanction.
On appeal, Wierengo does not acknowledge the analysis behind the district court’s
decision, much less explain why the decision was an abuse of discretion. See Evans v. Sir Pizza
of Ky., Inc., 476 F. App’x 605, 608 (6th Cir. 2012) (affirming the denial of several motions to
compel because “[plaintiff] does not explain why these decisions were an abuse of discretion”).
She appears to focus on Akal’s alleged failure to produce security footage in a “viewable”
format. But she does not address the district court’s conclusion that she had viewed the video,
received a copy of it from the U.S. Marshal Service, and failed to explain how Akal “withheld”
it. Wierengo also does not explain, nor provide authority for, her contention that Akal had a
legal duty to produce the video footage in a different, non-native format. In fact, she does not
even provide enough evidence showing that Akal either had the video or that it destroyed it in
bad faith.3 Without more, it is impossible to say that the district court abused its discretion on
this issue.
To the extent Wierengo challenges the district court’s refusal to consider other discovery
issues contained in her rambling, often incoherent motion to compel, the district court cannot be
faulted for refusing to do the work of Wierengo’s counsel. The district court did not have a duty
to undertake a detailed review of the discovery record, nor did it have a duty to manufacture
legal arguments based on that review. See Emerson v. Novartis Pharms. Corp., 446 F. App’x

3

Wierengo points to deposition testimony suggesting that Akal’s investigator had a copy
of the footage on his laptop; however, it cannot be inferred from this testimony alone that Akal
destroyed the copy “in bad faith.”
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733, 736 (6th Cir. 2011) (holding that the “district court did not need to independently consider
whether there were any other arguments or facts that [plaintiff] could have cited to that might
have been sufficient”); Wimbush v. Wyeth, 619 F.3d 632, 638 n.4 (6th Cir. 2010) (“[I]t was
[plaintiff’s] job to point to the evidence with specificity and particularity in the relevant brief
rather than just dropping a pile of paper on the district judge’s desk and expecting him to sort it
out.”).
VII.
For the above reasons, we affirm the district court’s denial of Wierengo’s motion to
compel and its grant of summary judgment in favor of Akal.

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