Pawlaczyk v. Besser Credit Union

Filing 35

ORDER Adopting 34 Report and Recommendation Granting 24 Motion for Summary Judgment, Denying 20 Motion for Sanctions, and Dismissing Plaintiff's Complaint. Signed by District Judge Thomas L. Ludington. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JENNIFER PAWLACZYK,
Plaintiff,
v.

Case No. 14-cv-10983
Honorable Thomas L. Ludington

BESSER CREDIT UNION,
Defendant.
__________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING MOTION
FOR SUMMARY JUDGMENT, DENYING MOTION FOR SANCTIONS, AND
DISMISSING PLAINTIFF’S COMPLAINT
Plaintiff Jennifer Pawlaczyk filed a complaint initiating this case on March 6, 2014. Pl.’s
Compl., ECF No. 1. Pawlaczyk included three counts in her complaint against Defendant Besser
Credit Union (“Besser”). First, she alleges that Besser’s termination of her employment on April
25, 2013 violated Title VII, 42 U.S.C. 2000, et seq, because it was retaliation for Plaintiff’s
opposition to Defendant’s allegedly unlawful hiring practices. Pawlaczyk claims that she was
fired because she told Besser CEO Nancy Montie that attaching notes to “the applications of new
employees to identify these employees by demographics . . . [was] inappropriate and illegal” and
because she “opposed Montie’s hiring practice of hiring based on gender” when “Montie
expressed her interest in a lesser qualified male applicant over a more qualified female
applicant.” Id.
Next, she alleges that Defendant violated the Michigan Whistleblowers Protection Act,
MCL § 15.361, when it dismissed Pawlaczyk for her whistleblowing. Plaintiff claims she was

fired in part because she notified auditors about forged signatures uncovered during an audit1 and
in part because she reported, or was about to report, “that Nancy Montie removed an appliance
and flowers from repossessed homes owned by the Besser Credit Union.” Pl.’s Compl. 3, ECF
No. 1. Lastly, she claims Defendant committed the tort of public disclosure of embarrassing
private facts when Defendant’s CEO emailed other credit union CEOs to inform them that
Pawlaczyk was no longer employed by Besser.
I.
Besser answered the complaint on April 3, 2014. It moved for judgment on the pleadings
on July 23, 2014 seeking dismissal of Counts 2 & 3 of Plaintiff’s Complaint. ECF No. 12. On
December 22, 2014, the Court issued an Opinion and Order granting Defendant’s motion and
dismissing Counts 2 & 3 of Plaintiff’s Complaint. ECF No. 21. Defendant did not move for
judgment on Count 1 of Plaintiff’s Complaint and the case proceeded to discovery on that count.
A.
A settlement conference was scheduled for September 30, 2014. ECF No. 11. On that
date, neither Plaintiff Pawlaczyk nor her counsel, Richard Meier, appeared for the conference.
On October 17, 2014, Defendant filed a motion for sanctions, fees, and costs related to Plaintiff’s
failure to appear. ECF No. 17. Plaintiff’s counsel responded on October 23, 2014 and asserted
that he has been unable to attend to his case files for medical reasons and requested to withdraw.
ECF No. 22. While Attorney Meier’s motion to withdraw was pending, Defendant moved for
summary judgment on Count 1 of Plaintiff’s Complaint. Def.’s Mot. Summ. J., ECF No. 24.
A hearing was held on Attorney Meier’s motion on November 13, 2014. Following the
hearing, Mr. Meier was permitted to withdraw and Pawlaczyk was given thirty days to procure

1

Plaintiff does not indicate in her complaint to what documents these signatures were affixed, or how or why the
signatures were relevant to the audit.

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new counsel or she would be proceeding pro se. ECF No. 26. The thirty day period for
Pawlaczyk to find new representation expired on December 24, 2014. The stay imposed on the
case was lifted when Plaintiff’s time to procure counsel expired. Because Plaintiff was
proceeding pro se, the case was referred to Magistrate Judge Patricia T. Morris for the
consideration of any and all pretrial matters, save Defendant’s amended motion for sanctions,
fees, and costs. ECF No. 27.
B.
On September 12, 2014, Magistrate Judge Patricia T. Morris issued a report
recommending that Defendant’s motion for summary judgment be granted and Plaintiff’s
Complaint be dismissed. Rep. & Rec. 1, ECF No. 34. She found persuasive Defendant’s
arguments that Plaintiff “has presented no evidence establishing a prima facie discrimination
case and, alternatively, that [Defendant] had legitimate reasons for terminating Plaintiff.” Id.
II.
Although the Magistrate Judge’s report explicitly stated that the parties to this action may
object to and seek review of the recommendation within fourteen days of service of the report,
neither Plaintiff nor Defendant filed any objections. The election not to file objections to the
Magistrate Judge’s report releases the Court from its duty to independently review the record.
Thomas v. Arn, 474 U.S. 140, 149 (1985). The failure to file objections to the report and
recommendation waives any further right to appeal.
III.
Lastly, Defendant’s motion for sanctions, fees, and costs remains outstanding. Defendant
sought $1,427.10 in fees and costs associated with the appearance of its representative and
counsel at the cancelled settlement conference as well as whatever sanction the Court deemed

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appropriate. Def.’s Am. Mot. Sanctions 2-3, ECF No. 20. A hearing on the motion was held on
November 13, 2014. At the hearing and upon learning of Plaintiff Counsel’s medical issues,
Defendant stated that while it was not withdrawing its motion, it was not taking a position as to
the absolute propriety of the relief requested. Attorney Meier, Plaintiff Counsel prior to being
excused, stated at the motion hearing that he believed it would be unjust to impose sanctions if
Defendant succeeded on its motion for summary judgment. He reasoned that the opportunity to
settle the case that Defendant lost would be offset by the fact that they achieved dismissal of
Plaintiff’s case through motion practice.
Defendant was required to appear for a settlement conference which was eventually
cancelled due to the non-appearance of Plaintiff and her attorney. In such circumstances,
apportionment of fees would usually be appropriate. This case, however, is unique because
Defendant shortly after filed a successful motion for summary judgment. Thus, costs would only
be appropriate to the extent that Defendant’s costs in filing the motion for summary judgment
exceeded the cost to them of settling the case had Plaintiff and her attorney appeared. Eliciting
the information necessary to make such a comparison would be unhelpful and unnecessarily time
consuming considering the outcome of the case. Defendant’s motion will be denied.
IV.
Accordingly, it is ORDERED that the magistrate judge’s Report and Recommendation,
ECF No. 34, is ADOPTED.
It is further ORDERED that Defendant Besser’s Motion for Summary Judgment, ECF
No. 24, is GRANTED.
It is further ORDERED that Plaintiff Pawlaczyk’s Complaint, ECF No. 1, is
DISMISSED with prejudice.

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It is further ORDERED that Defendant Besser’s Amended Motion for Sanctions, ECF
No. 20, is DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: July 10, 2015

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 10, 2015.
s/Karri Sandusky
Karri Sandusky, Acting Case Manager

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