Burger v. IDIDIT Incorporated
Filing
18
OPINION AND ORDER granting in part and denying in part 11 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HAROLD BURGER,
Plaintiff,
v.
Case No. 10-15053
Honorable Patrick J. Duggan
IDIDIT, INC.,
Defendant.
____________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On December 20, 2010, Plaintiff Harold Burger (“Plaintiff”) filed this lawsuit
against his former employer, Ididit, Inc. (“Ididit”), alleging that he was unlawfully
terminated based on his sex and in retaliation for his complaints about sex discrimination
in violation of Title VII of the Civil Rights Act of 1964 and Michigan’s Elliott-Larsen
Civil Rights Act. Presently before the Court is Ididit’s motion for summary judgment
filed pursuant to Federal Rule of Civil Procedure 56 on August 15, 2011. The motion has
been fully briefed and the Court held a motion hearing on October 12, 2011.
I.
Standard for Summary Judgment
Summary judgment is appropriate “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). The central 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,
106 S. Ct. 2505, 2512 (1986). After adequate time for discovery and upon motion, Rule
56 mandates summary judgment against a party who fails to establish the existence of an
element essential to that party’s case and on which that party bears the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).
The movant has an initial burden of showing “the absence of a genuine issue of
material fact.” Id. at 323, 106 S. Ct. at 2553. Once the movant meets this burden, the
“nonmoving party must come forward with ‘specific facts showing that there is a genuine
issue for trial.’” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S. Ct. 1348, 1356 (1986) (quoting Fed. R. Civ. P. 56(e)). To demonstrate a genuine
issue, the nonmoving party must present sufficient evidence upon which a jury could
reasonably find for that party; a “scintilla of evidence” is insufficient. See Liberty Lobby,
477 U.S. at 252, 106 S. Ct. at 2512. The court must accept as true the non-movant’s
evidence and draw “all justifiable inferences” in the non-movant’s favor. See id. at 255,
106 S. Ct. at 2513.
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record . . . or (B) showing
that the materials cited do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to support the fact.” Fed. R.
Civ. P. 56(c)(1).
II.
Factual and Procedural Background
2
Ken and Jane Callison, husband and wife, started Ididit in 1986. Ididit
manufactures customized steering wheel columns for hot rods and street rods and sells
other related equipment. Ken and Jane Callison each own 40% of the corporation. Their
son and daughter, Scott Callison and Kimberly Johnson, each own 10% of the
corporation. Each of the owners (collectively “the Callisons”) is active in the business.
Ididit hired Plaintiff as a sales representative in 2003. At the time and throughout
his employment, Plaintiff was supervised by the sales manager, Marty Waterstraut
(“Waterstraut”). Some time after Plaintiff was hired, Ididit hired a third sales
representative. In 2006, Kellie Weaver “(Weaver”) assumed the third sales representative
position.
The sales representatives at Ididit worked in the “front office” along with the
office manager, Celeste Lamoreaux (“Lamoreaux”), and customer service representative,
Lorrie Brown (“Brown”). Jane Callison, who served as Ididit’s President, worked
primarily in the front office. Ken and Scott Callison worked in Ididit’s manufacturing
section.
The basic duties of the sales representatives were to take orders from customers
that arrived via facsimile, telephone, or e-mail, meet customers in Ididit’s showroom,
answer phone calls from customers or potential questions, and attend car shows where
Ididit marketed its products. Throughout Plaintiff’s employment, the desk of the third
sales representative always was closest to the fax machine and consistently that sales
representative had the highest “sales statistics.” (See Pl.’s Resp. Ex G, Ex. H ¶ 14; Ex. I.)
3
From its inception until 2008, Ididit experienced steady and strong growth in sales
without the need for sales representatives to engage in solicitation of sales or “cold calls.”
In 2008, in line with the recession in the national economy, Ididit’s sales stopped growing
and began decreasing significantly. In response, Jane Callison issued a “New Directive in
Sales” to the sales staff. (See Def.’s Mot. Ex. E Att. 1.) This memo encourages sales
employees to actively seek business rather than wait for sales calls to come into the
office. (Id.) As part of this directive, each of the three sales representatives were
assigned two lists of current and former Ididit dealers to contact in hopes of generating
increased sales. The sales representatives also were provided a checklist to guide them on
what to discuss during the calls.
Waterstraut and Weaver completed each of their lists shortly after receiving them.
Plaintiff completed only part of one list, which Waterstraut subsequently completed.
Plaintiff claimed the second list had been lost by the cleaning people. Nevertheless,
Waterstraut testified during his deposition in this case that there was not a high rate of
return on these calls made by sales representatives. (Pl.’s Resp. Ex. B at 18.) The
majority of sales still were generated by calls to the sales representatives. (Id. at 18-19.)
By September 2008, Ididit’s business conditions had deteriorated to a point where
the Callison’s became concerned about the corporation’s ability to meet its payroll. As a
result, the Callison’s found it necessary to lay off employees in the front office and
manufacturing. They met and “decided what areas [they] could reduce the work staff in
and then [they] talked with other people and decided who would be laid off in that work
4
staff.” (Pl.’s Mot. Ex. A. at 10.) The Callisons concluded that two of the five employees
in the front office and six or seven manufacturing employees would be let go.1 (See, e.g.,
Def.’s Mot. Ex. A ¶ 6; Ex. H at 10.) With respect to the front office, the Callisons
decided that they could lose one salesperson and a customer service representative. (Pl.’s
Mot. Ex. A. at 12.) The Callisons assigned the task of selecting which manufacturing
employees would be laid off to the general foreman in the machine shop. (Pl.’s Resp. Ex.
A at 10.) They, however, did not ask Waterstraut or Lamoreaux to identify which
employees should be terminated from the front office. (Id. at 12.) Jane Callison
explained that Waterstraut and Lamoreaux were not consulted because she, along with
her daughter Kimberly Johnson, are very close to what happens in the front office. (Id. at
12-13.) In affidavits submitted in support of Ididit’s motion, the Callisons state that they
analyzed whether to layoff Plaintiff or Weaver (they never considered laying off
Waterstraut, the sales manager) and decided on Plaintiff. (Def.’s Mot. Ex. A ¶ 6; Ex. B.
¶¶ 4, 5; Ex. C. ¶¶ 3, 4.)
According to the Callisons, they chose to retain Weaver over Plaintiff based on a
comparison of their sales statistics, Weaver’s “embrace[]” of the new sales directive, and
Weaver’s “better communication style with customers.” (See, e.g., id. Ex. A. ¶¶ 4-7.)
With regard to sales statistics, Weaver’s sales statistics were higher than Plaintiff’s.
1
The front office included employees other than the office manager and
sales/customer service representatives. It does not appear, however, that the
consideration of who to layoff went beyond those five employees.
5
(Def.’s Mot. Ex. D at 14.) As to the new sales directive, Jane Callison observed that
Weaver eagerly completed the phone calls on her lists, even generating some sales from
those conversations, and created new sales ideas. (Id. at 41-43.) The Callisons claim that
Weaver communicated with customers better than Plaintiff. They explain that “Weaver
was patient with customers and helped customers understand what they needed” whereas
Burger “would talk down to customers and get frustrated with customers when they did
not understand his explanation.” (See, e.g., Def.’s Mot. Ex. A ¶ 7; Ex. B ¶ 5.) Jane
Callison testified during her deposition that another reason why Weaver was retained
instead of Plaintiff was that Plaintiff “created a lot of tension in the office. He often
came in with an attitude. And people were tiptoeing around him if he was in a bad mood.”
(Id. Ex. D. at 16.)
On September 22, 2008, Jane Callison and Ididit’s Human Resources employee
Maggie Seagraves, called Plaintiff, Brown, and Nikki Callison (Jane and Ken Callison’s
granddaughter who was working in the manufacturing area of the corporation) into a
meeting. The employees were informed that, due to the economy, they were being
temporarily laid off. (Def.’s Mot. Ex. H at 10.) The employees were told to call in a
week for information as to whether they should return to work or whether they would
continue to be laid off. (Id.) Six or seven manufacturing employees also were laid off at
this time. (Def.’s Reply Ex. C at 10.)
Following the layoffs, Ididit determined that it had laid off too many employees to
operate sufficiently. In the front office, billings were not being done and there was no
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employee capable of negotiating with customers. (Id. Ex. D. at 36.) Thus the Callison’s
decided to bring one front office employee back to work. Ken Callison met with
Waterstraut and Ididit’s then-office manger, Laura Wright, to decide whether that
employee should be Brown or Plaintiff. (Def.’s Mot. Ex. F at 31-32.) Waterstraut and
Wright agreed that Brown should be brought back. (Id. at 32.) Waterstraut explained
during his deposition: “Laura [Wright] was nowhere near as qualified to do Lorrie
[Brown]’s job, she had only been there for a very short time, and it was very obvious that
the administrative end of the office was really falling down badly without her there.”
(Id.) In comparison, the reduced sales staff “was working just fine.” (Id. Ex. D at 37.)
Additionally, during the week following the layoffs, the Callisons and other employees
felt that the atmosphere in the front office was improved with Plaintiff’s absence. (Id. Ex.
D at 34-35, 37-78; Ex. F at 36-37; Ex. I at 27-28.) In the manufacturing area, all but two
employees were eventually returned to work.
During the week after Plaintiff was laid off, he communicated with Waterstraut.
In one of their conversations, Plaintiff expressed his belief that the decision to terminate
him instead of Weaver was based on his gender. (Pl.’s Resp. Ex. C at 31.)
According to Jane Callison, Seagraves advised that employees not called back
after the first week should be “permanently laid off.” (Def.’s Mot. Ex. D at 58-59.) A
week after being laid off, Plaintiff contacted Ididit about his employment status and spoke
with Seagraves. She informed Plaintiff that he was being permanently laid off. He
responded that it must be a “woman thing.” (Id. Ex. O at 31, see also Ex. E at 33.)
7
Following his termination, Plaintiff filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”). On September 28, 2010, the EEOC
dismissed his charge and issued a right-to-sue letter. Plaintiff filed his Complaint in this
matter on December 20, 2010, alleging the following claims: (I) sex discrimination in
violation of Title VII; (II) sex discrimination in violation of ELCRA; (III) retaliation in
violation of Title VII; and (IV) retaliation in violation of ELCRA.
III.
Applicable Law and Analysis
A.
Sex Discrimination
Ididit seeks summary judgment with respect to Plaintiff’s sex discrimination
claims brought pursuant to Title VII and ELCRA. Where, as here, a plaintiff lacks direct
evidence of discrimination, courts apply the burden-shifting framework set forth in
McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), to
analyze both claims. Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th
Cir.2003). First, the plaintiff must establish a prima facie case of discrimination by
showing that: “‘(1) he or she was a member of a protected class; (2) he or she suffered an
adverse employment action; (3) he or she was qualified for the position; and (4) he or she
was replaced by someone outside the protected class or was treated differently than
similarly-situated, non-protected employees.’” Wright v. Murray Guard, Inc., 455 F.3d
702, 707 (6th Cir. 2006) (quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)).
To satisfy the first prong in a case where a member of the majority is claiming
discrimination in violation of federal law, “the plaintiff must ‘demonstrate background
8
circumstances to support the suspicion that the defendant is that unusual employer who
discriminates against the majority.’” Sutherland, 344 F.3d at 614 (quoting Zambetti v.
Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir.2002) (additional quotation marks and
citation omitted)). The same plaintiff alleging sex discrimination under Michigan’s
ELCRA, however, need not satisfy this arguably heightened standard of proof. Lind v.
City of Battle Creek, 470 Mich. 230, 681 N.W.2d 334 (2004) (holding that under
Michigan’s statute, a reverse discrimination claim does not require a showing of
“background circumstances supporting the suspicion that the defendant is that unusual
employer who discriminates against the majority.”)
The prima facie analysis is further modified in a case involving a “reduction in
force.” Gragg v. Somerset Technical Coll., 373 F.3d 763, 767 (6th Cir. 2004). The Sixth
Circuit has explained that “a true work force reduction case” arises “when business
considerations cause an employer to eliminate one or more positions within the
company.” Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (1990). In a reduction in force
case, the plaintiff must present “‘additional direct, circumstantial, or statistical evidence
tending to indicate that the employer singled out the plaintiff for discharge for
impermissible reasons. . . . The evidence must be sufficiently probative to allow a
factfinder to believe that the employer intentionally discriminated against the plaintiff
because of [gender].’” Gragg, 373 F.3d at 767-78 (quoting Barnes, 896 F.2d at 1465).
This additional requirement also applies to a plaintiff alleging a claim under Michigan’s
ELCRA. Geiger v. Tower Auto., 579 F.3d 614, 626 (6th Cir. 2009).
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If a plaintiff satisfies his burden of proving a prima facie case of gender
discrimination, the employer must demonstrate a legitimate, non-discriminatory reason
for the adverse employment action. Sutherland, 344 F.3d at 614-15. If the employer
presents such proof, to succeed on his claim the plaintiff must demonstrate that the
proffered reason is a pretext for discrimination. Id. at 615. There are three ways the
plaintiff can make this showing: demonstrating that the stated reason (1) has no basis in
fact, (2) did not actually motivate the employer’s action, or (3) was insufficient to
motivate the action. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th
Cir.1994), overruled on other grounds in Geiger, 579 F.3d 614.
Ididit challenges Plaintiff’s ability to satisfy the first and fourth prongs of his
prima facie case of reverse sex discrimination. As to the first prong– that Ididit is the
unusual employer who discriminates against males– Plaintiff responds that this showing
is satisfied where the termination decision was made by a woman. While Ididit claims
that the Callisons, jointly, made the decision to terminate Plaintiff instead of Weaver, this
Court finds a genuine issue of material fact as to whether this is accurate. Evidence
suggests that the Callisons jointly decided to terminate two people from the front office
and approved the final decision regarding who to terminate but that Jane Callison– with
Kimberly Johnson’s assistance– selected which employees to terminate. The Sixth
Circuit has found the fact that the decision-maker was of the opposite race or gender
sufficient to satisfy the “background circumstances” requirement. Zambetti, 314 F.3d at
257. Moreover, there is evidence that Jane Callison specifically wanted to fill the sales
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representative position with a woman. (Pl.’s Resp. Ex. M at 21-22; Ex. C at 68-69.)
The Court, however, does not find Plaintiff’s other evidence of Jane Callison’s
favoritism towards women persuasive. Plaintiff’s complaint that Jane Callison allowed
female employees more frequent breaks relates to female employees who took breaks to
smoke. This does not distinguish male employees from female employees; rather, it
distinguishes between smoking and non-smoking employees. While Plaintiff is aware of
a male employee who allegedly expressed an interest in a position that went to a woman,
he lacks evidence that the male employee actually applied for the position and he presents
no evidence of any male employee applying for a position and being denying the
opportunity. Finally, with respect to a female employee’s inappropriate touching of other
employees (Plaintiff and others, including other female employees), the evidence reflects
that Ididit addressed the complaints and the behavior thereafter stopped.
As to the modified fourth prong of his prima facie case, Plaintiff first responds that
this is not a reduction in force case. This Court cannot agree, as the undisputed evidence
demonstrates that, due to business considerations (i.e. a sharp decline in sales) the
Callisons decided to eliminate several positions from the corporation. Nevertheless,
based on the evidence discussed above, the Court finds a genuine issue of material fact as
to whether Ididit selected Plaintiff as part of its reduction in force because of his gender.
Even if Plaintiff demonstrates a prima facie case of gender discrimination, Ididit
contends that it had legitimate non-discriminatory reasons for choosing him over Weaver
for termination: (1) Weaver’s higher sales statistics; (2) Weaver’s enthusiastic acceptance
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and performance of the new sales directive; and (3) Weaver’s superior communication
skills with customers.
In response, Plaintiff presents evidence to show that Ididit’s reliance on Plaintiff’s
and Weaver’s sales statistics was pretextual. Plaintiff demonstrates that the sales
representative sitting closest to the fax machine (Weaver and the sales representative she
replaced) generally had the highest sales numbers, regardless of that person’s sales
abilities. (Pl.’s Resp. Ex. G; Ex. H ¶ 14.) As Lamoreaux, Ididit’s office manager,
explained during her deposition, the person sitting next to the fax machine did not have to
do anything for the sales they entered but grab the orders from the fax machine. (Id. Ex.
F at 42.) Lamoreaux testified that she therefore does not believe that the sales numbers
accurately reflect a sales representative’s value. (Id.) Waterstraut, Ididit’s sales manager,
in fact did not use the sales numbers when evaluating the sales representatives. (Id. Ex. B
at 40.)
As to Ididit’s other two reasons, Plaintiff presents evidence to raise a genuine issue
of material fact as to whether they had a basis in fact or were sufficient to motivate
Ididit’s decision. First, Plaintiff shows the Waterstraut, the sales manager, believed that
Weaver should have been terminated instead of Plaintiff. (Pl.’s Resp. Ex. B at 34.)
Lamoreaux, the office manager, thought that Plaintiff was better than Weaver at the sales
representative job. (Id. Ex. F. at 34.) A comparison of Plaintiff’s and Weaver’s
performance evaluations near the time of Plaintiff’s termination further supports their
views of the two employees. (See id. at Exs. J-L.) Finally, while Ididit asserts that
12
Plaintiff was sometimes difficult to work with and that the atmosphere in the front office
improved without him, the Court finds a genuine issue of material fact as to whether this,
alone, could support Ididit’s termination decision.
For the above reasons, the Court finds genuine issues of material fact precluding
summary judgment in Ididit’s favor on Plaintiff’s Title VII and ELCRA gender
discrimination claims (Counts I and II).
B.
Retaliation
Plaintiff’s Title VII and ELCRA retaliation claims relate to his initial layoff and
subsequent permanent layoff or termination. Plaintiff claims that he was initially laid off
in retaliation for his repeated complaints about what he deemed to be preferential
treatment of female employees in the front office. He asserts that his temporary layoff
became permanent in retaliation for his complaint to Waterstraut that the first decision
was gender-based.
Absent direct evidence, as is the case here, the McDonnell Douglas burdenshifting analysis that applies to Plaintiff’s discrimination claims apply to his retaliation
claims. To establish a prima facie case of retaliation, Plaintiff must show “(1) that [he]
engaged in a protected activity; (2) that the defendant had knowledge of [his] protected
conduct; (3) that the defendant took an adverse employment action towards [him]; and (4)
that there was a causal connection between the protected activity and the adverse
employment action.” Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 381 (6th Cir.
2002) (citing Christopher v. Stouder Mem’l Hosp., 936 F.2d 870, 877 (6th Cir.1991)). To
13
satisfy the causal connection requirement, Plaintiff “must produce sufficient evidence
from which an inference could be drawn that the adverse action would not have been
taken had [he] not [engaged in protected activity].” Nguyen v. City of Cleveland, 229
F.3d 559, 563 (6th Cir. 2000) (citations omitted). Michigan courts assess retaliation
claims under the ELCRA using the same general framework; however, the Michigan
Court of Appeals has held plaintiffs to a higher standard of causation. A plaintiff alleging
a retaliation claim under the ELCRA “‘must show that his participation in activity
protected by the ELCRA was a ‘significant factor’ in the employer’s adverse employment
action, not just that there was a causal link between the two.’” Mickey v. Zeidler Tool and
Die Co., 516 F.3d 516, 523, n.2 (6th Cir. 2008) (quoting Barrett v. Kirtland Cmty. Coll.,
245 Mich. App. 306, 628 N.W.2d 63, 70 (Mich. Ct. App. 2001)).
With respect to his initial layoff, to show that he engaged in protected activity,
Plaintiff relies on his complaints to Waterstraut and Lamoreaux about what he perceived
as unfair treatment based on sex. This included his complaints in 2005 about a female
employee’s inappropriate touching of employees and his complaints at an unspecified
time about excessive smoking breaks afforded to female employees. The former
complaints are too far removed (three years) to suggest a causal connection with
Plaintiff’s termination and Plaintiff lacks any evidence to otherwise demonstrate a
connection. Moreover, everyone in the front office apparently complained about the
employee’s conduct. (See Def.’s Mot. Ex. F at 29-30; Ex. G at 28-29.) Plaintiff’s
complaints about excessive breaks were perceived as complaints about smokers rather
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than women. (See id. at 23, G at 25.) Additionally, Lamoreaux testified during her
deposition that she also shared Plaintiff’s complaint about smoking breaks and voiced her
complaint to Kimberly Johnson on her own behalf, without mentioning Plaintiff. (See id.
Ex. G at 25-26.)
Plaintiff also relies on his complaints to Cynthia Farmer, Ididit’s head of Human
Resources, that Weaver was given preferential treatment in the workplace. (Pl.’s Resp.
Ex. M at 13-14.) Plaintiff presents no evidence, however, that Farmer shared his
complaints with anyone involved in the decision to lay-off Plaintiff, or anyone else at
Ididit.2
Relying on Jane Callison’s statement during her deposition that Plaintiff “had just
a negative way about creating– just creating issues in the sales office” (Pl.’s Resp. Ex. D
at 23), Plaintiff further argues that “[a] reasonable jury could find that one way [Plaintiff]
created ‘issues’ was by complaining about what he deemed to be discriminatory treatment
of males.” (Pl.’s Resp. Br. at 18.) There is no evidence, however, that the “issues” to
which Jane Callison was referring related in any way to gender discrimination. In fact,
the evidence suggests that Jane Callison instead was simply referring to Plaintiff’s general
attitude. (See, e.g., Def.’s Mot. Ex. D at 16 (Jane Callison explaining that Plaintiff
created tension in the office because people had to “tiptoe[] around him” if he was in a
2
Plaintiff also complained to Waterstraut that Weaver was shown favoritism.
(Def.’s Mot. Ex. F at 26-27.) Waterstraut did not discuss Plaintiff’s concerns with the
Callisons, however. (Id. at 28-29.)
15
bad mood); Ex. F at 37-38 (Waterstraut explaining that Plaintiff “is an intense guy” and
would let internal and external things get to him and that would affect the mood of
everyone around him pretty much.)
With respect to his permanent layoff or termination, Plaintiff contends that this
decision was made in retaliation for his complaints to Waterstraut that his initial lay-off
was gender-based.3 Ken Callison consulted Waterstraut about whether to bring back
Plaintiff or Brown, when it became apparent that the front office could not function with
three people. (Def.’s Mot. Ex. F. at 31.) There is no evidence, however, that Waterstraut
shared Plaintiff’s purported complaint of gender discrimination with Ken Callison or
anyone else at Ididit. Plaintiff nevertheless argues that “a jury could find that this report
[i.e., Plaintiff’s complaint to Waterstraut] was forwarded to the Callison family.” (Pl.’s
Resp. Br. at 19.) Such a conclusion would constitute impermissible speculation by a jury.
In any event, Ididit demonstrates that the decision to bring Brown rather than Plaintiff
back to work (which the evidence suggests was made by Ken Callison, Waterstraut, and
Laura Weaver (then the office manager) was based on a legitimate, non-retaliatory
reason. Specifically, Weaver lacked the skills and experience to handle the administrative
end of the office that Brown previously was responsible for and, as a result, tasks were
not getting done on that end; whereas, the sales representatives’ responsibilities were
3
Although Waterstraut does not recall Plaintiff expressing that he thought Weaver
was retained over him because of her gender (see Def.’s Mot. Ex. F at 35), the Court
accepts for purposes of Ididit’s motion Plaintiff’s testimony that he did tell Waterstraut
that he thought the decision was sex-based.
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being handled in Plaintiff’s absence without difficulty by Waterstraut and Wright. (Def.’s
Mot. Ex. F. at 32, Ex. D at 35.)
Moreover, when it first laid off employees, Ididit informed those employees to
contact the company in a week to determine whether they would be recalled to work.
(Def.’s Reply Ex. C at 10.) Further, in addition to Plaintiff, Ididit permanently terminated
two employees sometime after the initial lay-off. (Id.) These facts undermine a causal
connection between Plaintiff’s complaint that he believed his initial layoff was genderbased and the decision one week later to permanently terminate him.
For the above reasons, the Court concludes that Plaintiff cannot establish a prima
facie case of retaliation (Counts III and IV).
IV.
Conclusion
As set forth above, the Court finds genuine issues of material fact precluding
summary judgment in Ididit’s favor with respect to Plaintiff’s gender discrimination
claims under Title VII and Michigan’s ELCRA. With respect to Plaintiff’s federal and
state retaliation claims, however, the Court concludes that there are no genuine issues of
material fact and that Ididit is entitled to judgment as a matter of law with respect to these
claims.
Accordingly,
IT IS ORDERED, that Defendant Ididit Inc.’s motion for summary judgment is
GRANTED IN PART AND DENIED IN PART in that Counts III and IV of Plaintiff’s
Complaint are DISMISSED WITH PREJUDICE.
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Date: October 17, 2011
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
David M. Blanchard, Esq.
Edward A. Macey, Esq.
C. Philip Baither III, Esq.
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