Kurth v. Inkster et al

Filing 50

OPINION AND ORDER denying 39 Motion for Judgment as a Matter of Law. Signed by District Judge Sean F. Cox. (JHer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Colleen M. Kurth,
Plaintiff,
v.

Case No.: 10-11973

City of Inkster, et al.

Honorable Sean F. Cox

Defendants.
_________________________________________/
OPINION & ORDER DENYING DEFENDANTS’
MOTION FOR JUDGMENT AS A MATTER OF LAW
Plaintiff Colleen M. Kurth filed this action against the City of Inkster and her police
department supervisors, Paul Martin and Dennis Watkins, alleging that Defendants discriminated
against her under the Michigan Elliott-Larsen Civil Rights Act (“ELCRA”) and Title VII of the
Federal Civil Rights Act (“Title VII”) because of her gender; retaliated against her in violation of
Title VII for exercising her civil rights; caused her intentional infliction of emotional distress;
and engaged in a concert of action and civil conspiracy to terminate her. On July 11, 2011, the
Honorable Nancy G. Edmunds granted in part and denied in part Defendants’ motion for
summary judgment, dismissing all of Plaintiff’s claims except for her mixed-motive, gender
discrimination claim. Trial in this case began on November 29, 2011. The matter is currently
before the Court on Defendants’ motion for judgment as a matter of law, pursuant to FED. R.
CIV. P. 50. The parties have briefed the issues and the Court heard oral argument on November
30, 2011. For the reasons below, the Court shall DENY Defendants’ motion.

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BACKGROUND
I.

Factual Background:
On May 28, 2001, the City of Inkster Police Department (“the Department”) hired

Plaintiff as a probationary police officer. In September, 2004, the Department promoted her to
detective, the first woman to hold that position. Sergeant Sean Adams and Sergeant Paul Martin
were Plaintiff’s immediate supervisors. From September, 2002 to July, 2008, Kevin Smith was
the detective Lieutenant in charge of the detective bureau and Martin reported directly to Kevin
Smith. In July, 2008, Kevin Smith left the Department and he was replaced by Lieutenant
Jeffrey Smith. Lieutenant Jeffrey Smith reported directly to Defendant Dennis Watkins, who
was the Deputy Chief.
On January 22, 2009, an incident took place that led to Plaintiff’s termination and the
instant case. The employees of the Detective Bureau, including Plaintiff and Martin, were
preparing to conduct a raid to recover computers from an individual suspected of committing
identity theft. Martin became aware that Plaintiff was wearing a red police jacket. According to
Plaintiff, Martin approached Plaintiff and said that she was “not invited” on the raid. According
to Defendants, Martin told her to put on a lightweight, black, police-issued jacket, rather than the
red police jacket Plaintiff had been wearing. Other members of the raid team were wearing
different colored jackets, but none were bright-colored jackets. Martin insists that he told
Plaintiff to wear the standard-issue black jacket out of concern for her safety because the red
jacket could have made Plaintiff an easily-visible target.
In response to the “red jacket incident,” Lieutenant Jeffrey Smith requested that Sergeant
Martin and Sergeant Adams prepare memoranda regarding the red jacket incident. Lieutenant

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Smith also received an unsolicited letter from Plaintiff in which she discussed Martin’s treatment
of her, alleged on-going discrimination, and alleged that Martin created a hostile work
environment. After investigating the incident, Smith submitted a memorandum to Deputy Chief
Watkins, wherein he concluded that the Department should apply “progressive discipline” to
Plaintiff. Smith found that Plaintiff violated Department rules by failing to cooperate during the
raid and had committed insubordination by refusing Martin’s order. The results of the
investigation into Plaintiff’s conduct were ultimately reviewed by Watkins, who recommended
that the Department terminate Plaintiff’s employment. Chief Gregory Gaskin agreed with
Watkins’s recommendation and, in March, 2009, the Department terminated Plaintiff’s
employment. The Human Resources Department also conducted an investigation into Plaintiff’s
allegations and found that they did not support a hostile work environment claim.
On July 23, 2009, following her termination, Plaintiff and the Department engaged in
arbitration proceedings. The arbitrators recommended that the Department rehire Plaintiff after
finding that Watkins’s recommendation was based on an inaccurate disciplinary history. The
arbitrators also found that there were mitigating factors, including the fact that Plaintiff had
previously worn the same jacket on other raids and that there were other, more serious instances
of insubordination that did not lead to termination. The arbitrators considered that Plaintiff
was a long-term employee with a good professional record. In October, 2009, Plaintiff returned
to work.
II.

Procedural Background:
Plaintiff filed this action on April 27, 2010, alleging a number of state and federal

discrimination claims against Defendants. Defendants removed the action to this Court on May

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14, 2010. (Doc. No. 1).
On July 11, 2011, Judge Edmunds granted in part, and denied in part, Defendants’
motion for summary judgment. Judge Edmunds dismissed all of Plaintiff’s claims except for her
mixed-motive, gender-discrimination claim. Based upon previous evidence of discriminatory
comments by Martin, and Watkins’ alleged shared bias against Plaintiff, Judge Edmunds held
that there is a material question of fact whether the decision to terminate Plaintiff’s employment
was, in part, motivated by her gender. (7/11/11 Opinion at 26-27).
The case was reassigned to this Court on October 7, 2011. (Doc. No. 19). Trial began on
November 29, 2011. On November 30, 2011, at the close of Plaintiff’s proofs, Defendants
moved for judgment as a matter of law, pursuant to FED. R. CIV. P. 50.
On December 2, 2011, Plaintiff voluntarily dismissed any remaining claims brought
pursuant to the ELCRA. (Doc. No. 46).
LEGAL STANDARD
FED. R. CIV. P. 50 provides, in pertinent part:
(a)

Judgment as a Matter of Law.
(1)

In General. If a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable
jury would not have a legally sufficient evidentiary
basis to find for the party on that issue, the court may:
(A)
(B)

(2)

resolve the issue against the party; and
grant a motion for judgment as a matter of law
against the party on a claim or defense that,
under the controlling law, can be maintained
or defeated only with a favorable finding on
that issue.

Motion. A motion for judgment as a matter of law
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may be made at any time before the case is submitted
to the jury. The motion must specify the judgment
sought and the law and facts that entitle the movant to
the judgment.
FED. R. CIV. P. 50.
“In entertaining a motion for judgment as a matter of law, the court is to review all
evidence and draw all reasonable inferences in the light most favorable to the non-moving party,
without making credibility determinations or weighing the evidence.” Jackson v. FedEx
Corporate Services, Inc., 518 F.3d 388, 392 (6th Cir. 2008) (citations omitted). “In other words,
the decision to grant judgment as a matter of law or to take the case away from the jury is
appropriate whenever there is a complete absence of pleading or proof on an issue material to the
cause of action or when no disputed issues of fact exist such that reasonable minds would not
differ.” Jackson v. Quanex Corp., 191 F.3d 647, 657 (6th Cir. 1999) (citations and quotations
omitted).
ANALYSIS
Defendants contend that Plaintiff has failed to establish a prima facie case for a mixedmotive, gender discrimination claim. To prove a mixed-motive claim under Title VII, a plaintiff
must show: (1) The defendant took an adverse employment action against the plaintiff; and (2)
“race, color, religion, sex, or national origin was a motivating factor” for the defendant’s adverse
employment action. White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008).
“[A]n unlawful employment practice is established when the complaining party demonstrates
that race, color, religion, sex, or national origin was a motivating factor for any employment
practice, even though other factors also motivated the practice.” (42 U.S.C. § 2000e-2(m)).
I.

Plaintiff Presented Evidence that Martin’s Actions Were Motivated, In-Part, By
Discriminatory Animus and That Martin’s Report Was a Proximate Cause of Plaintiff’s
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Termination.
There is no dispute that Plaintiff suffered an adverse employment action when her
employment was terminated in March, 2009. Rather, Defendants contend that Plaintiff has
failed to establish that sex was a motivating factor in her termination.
As an initial matter, the Court, in viewing the evidence in a light most favorable to
Plaintiff, finds that Plaintiff has submitted evidence sufficient to establish that sex was a
motivating factor in her termination. The Court heard the testimony of Kevin Smith, who was
the Lieutenant in charge of the detective bureau and one of Plaintiff’s supervisors from
September, 2004 to July, 2008. The record establishes that Martin reported directly to Kevin
Smith. Kevin Smith testified as to Martin’s bias toward women, stating, “Paul [Martin] was not
happy with women in police work, in general. He would make comments about it and when I
told him that, you know, they were going to move Colleen Kurth under the detective bureau, he
didn’t like it at all.” (Rough Transcript, 11/30/11). Additionally, Kevin Smith testified:
[Martin] would say things like: a female police officer is worth a damn. If he got
into a fight he wants testosterone not estrogen. They are trouble, you know. Only
good for a couple of things. And, you know, something like he can clean is own
house or do his own dishes or something like that.
(Id.). Kevin Smith also stated that “[Martin] was very obvious to everybody that he did not care
for her.” (Id.). Furthermore, Plaintiff testified, “In April of 2005, [Martin] told me that women
should not be in police work. He never wants a woman backing him up.” Plaintiff also stated:
[W]hen I came to the detective bureau, he would constantly make reference to the
fact that I wasn’t wearing a tie, asked me constantly, everyday, ‘where is your tie?
Must be nice, you know, not to have to wear a tie to work.’ And this went on for
close to a year.
(Id.). Viewing the evidence in a light most favorable to the Plaintiff, these statements made by

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Martin tend to show that Martin harbored a discriminatory bias toward female detectives. Thus,
from the testimony provided by Kevin Smith and Plaintiff, the Court finds that a reasonable juror
could infer that Martin’s actions were motivated, in-part, by his discriminatory animus.
Defendants, however, contend that Plaintiff has failed to show discriminatory animus on
the part of the ultimate decision makers – Chief Gaskin, Deputy Chief Watkins and/or Ann
Capela, who is the City Manager for the City of Inkster. Both parties rely on the recent Supreme
Court decision Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), to support their positions. In
Staub, the Supreme Court discussed the applicability of the “cat’s paw” theory in employment
discrimination cases. Under a cat’s paw theory of liability, a plaintiff seeks to hold his or her
employer liable for the discriminatory animus of a supervisor who was not charged with making
the ultimate, adverse employment decision. Staub, 131 S. Ct. at 1190.
The plaintiff in Staub brought employment discrimination claims against his employer
under the Uniformed Services Employment and Reemployment Rights Act (USERRA), alleging
that his immediate supervisor discriminated against him because he was a member of the United
States Army Reserve. Id. at 1189. Specifically, the plaintiff alleged that his immediate
supervisors took offense to his monthly commitments to the Army Reserves because they
believed his commitments caused availability problems. Id. After receiving previous
disciplinary action by his supervisors, and after an independent investigation by management,
the plaintiff was ultimately fired by the vice-president on the advice of plaintiff’s supervisors.
The evidence established that plaintiff’s supervisors harbored discriminatory animus
toward plaintiff. Testimony revealed that plaintiff’s supervisors stated that plaintiff’s military
obligations were “‘a b[u]nch of smoking and joking and [a] waste of taxpayers’ money.’” Id.

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The evidence also established that plaintiff’s supervisor was “out to get” him. Id. The Seventh
Circuit held that, because the undisputed evidence established that the vice-president was not
wholly dependant on the advice of plaintiff’s supervisors, the employer was entitled to judgment.
Id. at 1190.
Comparing the plaintiff’s case to employment discrimination cases under Title VII, the
Supreme Court reversed the decision of the Seventh Circuit. The Court found:
Animus and responsibility for the adverse action can both be attributed to the earlier
agent (here, [plaintiff’s] supervisors) if the adverse action is the intended
consequence of that agent’s discriminatory conduct. So long as the agent [for the
employer] intends, for discriminatory reasons, that the adverse action occur, he has
the scienter required to be liable under USERRA.
Id. at 1192. The Court further explained, “We do not think that the ultimate decisionmaker’s
exercise of judgment automatically renders the link to the supervisor’s bias ‘remote’ or ‘purely
contingent.’” Id. The Court also stated:
[T]he requirement that the biased supervisor's action be a causal factor of the
ultimate employment action incorporates the traditional tort-law concept of
proximate cause. Thus, if the employer's investigation results in an adverse action
for reasons unrelated to the supervisor's original biased action . . . then the employer
will not be liable. But the supervisor's biased report may remain a causal factor if the
independent investigation takes it into account without determining that the adverse
action was, apart from the supervisor's recommendation, entirely justified. We are
aware of no principle in tort or agency law under which an employer's mere conduct
of an independent investigation has a claim-preclusive effect. Nor do we think the
independent investigation somehow relieves the employer of “fault.” The employer
is at fault because one of its agents committed an action based on discriminatory
animus that was intended to cause, and did in fact cause, an adverse employment
decision.
Id. at 1193 (internal citations omitted) (emphasis added).
Like the plaintiff in Staub, and viewing the evidence in a light most favorable to the
Plaintiff, Plaintiff in this case has also provided evidence from which a reasonable juror may

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infer that the adverse action was the intended consequence of Martin’s discriminatory conduct.
For example, Kevin Smith testified, “[Martin] had made comments to me about, you know, if he
ever got the power that he, you know, would deal with her, once and for all.” (Id.). Similarly,
Detective Anthony Delgreco testified that Martin would often comment, “How can I mess with
her today?” or “How can I write her up today?” (Id.).
In viewing the evidence in a light most favorable to the Plaintiff, Martin’s report to
Jeffrey Smith was at least partly motivated by discriminatory animus. Although evidence at trial
revealed that Jeffrey Smith conducted an independent investigation of the red jacket incident,
which he submitted to Deputy Chief Watkins and Chief Gaskin, Smith’s report relied on a memo
drafted by Martin. (Def’s Ex. 4). Like the independent investigation in Staub, Jeffrey Smith’s
investigation and report to Deputy Chief Watkins does not shield the Department from liability.
Pursuant to Staub, Martin’s report can be considered a proximate cause of Plaintiff’s
termination, despite the fact that Martin was not the ultimate decision-maker.
II.

This Case is not Similar to Grant v. Walgreen.
While Defendants agree that an employer can be liable for the discriminatory animus of a

supervisor who does not execute the actual adverse action, Defendants contend that this case is
more like Grant v. Walgreen, 2011 WL 2079923 (E.D. Mich. 2011), where the court declined to
apply Staub to a plaintiff’s claim of discrimination by an immediate supervisor. In Grant, the
plaintiff’s supervisor made reports to upper-management that plaintiff was violating various
store policies. After an independent investigation, upper-management terminated the plaintiff
after the district manager issued a number of warnings to plaintiff. The plaintiff sued her former
employer for age discrimination, alleging that her immediate supervisor’s actions were

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motivated by discriminatory animus.
The plaintiff in Grant provided evidence that her supervisor made comments that several
employees “really couldn't do their job because of the[ir] age” and that “[i]t would have been so
much better if [the store] had younger people.” Grant at * 5. The plaintiff further alleged that
the supervisor treated her differently than the younger employees. Id. In granting the
employer’s motion for summary judgment, the court held that the plaintiff could not rely on the
cat’s paw theory of liability, because, unlike in Staub, the plaintiff did not establish the
connection between the alleged age discrimination and the supervisor’s reporting of plaintiff’s
policy violations. Id. at *9. The supervisor’s comments did “not raise an issue that [the
supervisor] targeted Plaintiff and used Plaintiff's age as a reason to terminate her.” Id. at *10.
Grant, however, can be distinguished from the instant case. Unlike the supervisor in
Grant, and similar to the supervisor in Staub, Martin made comments that a reasonable juror
could interpret as targeting Plaintiff. As stated above, Martin made comments to other detectives
such as, “If I ever get the power, I would deal with her, once and for all,” “How can I mess with
her today?,” and “How can I write her up today?” Viewing these comments in conjunction with
Martin’s discriminatory comments about female detectives, and in a light most favorable to the
Plaintiff, a reasonable juror could find that Martin’s report to Jeffrey Smith was motivated by,
and sufficiently linked to, Martin’s discriminatory animus.
Accordingly, the Court finds that Plaintiff has established a prima facie case of mixedmotive, gender discrimination.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that Defendants’ motion for

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judgment as a matter of law (D.E. No. 39) is DENIED.
IT IS SO ORDERED.
S/Sean F. Cox
SEAN F. COX
UNITED STATES DISTRICT JUDGE
Dated: December 20, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record on
December 20, 2011, by electronic and/or ordinary mail.
S/Jennifer Hernandez
Case Manager

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