Tafty v. CVS Pharmacy
OPINION and ORDER granting 14 MOTION for Summary Judgment Signed by District Judge Bernard A. Friedman. (CMul)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ABDRREZA AKHAVAN TAFTY,
Civil Action No. 11-CV-14628
HON. BERNARD A. FRIEDMAN
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is presently before the Court on defendant’s motion for summary
judgment [docket entry 14]. Plaintiff has filed a response in opposition and defendant has filed a
reply. Pursuant to E.D. Mich. LR 7.1(f)(2), the court shall decide this motion without oral argument.
This is an employment discrimination action. Plaintiff, who worked for defendant
as a “lead pharmacy technician” until January 2010, alleges that defendant discriminated against him
based on his national origin (Persian) and retaliated against him when he complained to higher
management about his supervisor’s mistreatment of him. Specifically plaintiff alleges that his
supervisor, Dalia Omais, “a female of Arabic decent,” treated him poorly, was more critical of his
work than any of his previous supervisors had been, and “would curse at Plaintiff in Arabic and call
him vulgar names based on his National Origin and religion (Muslim).” Compl. ¶¶ 16-24. Plaintiff
further alleges that he complained to Omais’ supervisor, Sarita Saade-Harfouch, that “Omais
“treated him like an animal and reported the vulgar comments, but that no corrective action was
taken, Omais’ treatment of him worsened, and plaintiff was eventually discharged. Id. ¶¶ 26-36.
Plaintiff asserts claims for national origin discrimination (Count I) and retaliation (Count II) under
Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws §§ 37.2101, et seq. For
relief he seeks damages, costs and attorney fees.
Defendant seeks summary judgment on both counts, arguing that plaintiff has failed
to state a prima facie case of national origin discrimination (based either on his termination from
employment or the allegedly hostile work environment) or retaliation, and that defendant had
legitimate, nondiscriminatory reasons for discharging plaintiff, namely, his failure to meet his
supervisor’s expectations regarding work performance. Plaintiff argues that he has stated a prima
facie case of national origin discrimination and retaliation and that the facts are disputed as to
whether the reasons offered for his termination are legitimate or pretextual.
Under Fed. R. Civ. P. 56(a), 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.” “[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that there
be no genuine dispute as to any material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748 (1986) (emphasis in original). Viewing the evidence in the light most favorable to the opposing
party, summary judgment may be granted only if the evidence is so one-sided that a reasonable factfinder could not find for the opposing party. See Anderson, 477 U.S. at 248-50; Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1478-80 (6th Cir. 1989). In other words, “[a] material issue of fact
exists where a reasonable jury, viewing the evidence in the light most favorable to the non-moving
party, could return a verdict for that party.” Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534
(6th Cir. 1990).
The ELCRA prohibits employers from “discharg[ing] or otherwise discriminat[ing]
against an individual with respect to employment, compensation, or a term, condition, or privilege
of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital
status.” Mich. Comp. Laws § 37.2202(1)(a). The statute also prohibits any person, including an
employer, from “[r]etaliat[ing] or discriminat[ing] against a person because the person has opposed
a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted,
or participated in an investigation, proceeding, or hearing under this act.” Mich. Comp. Laws §
Plaintiff’s Wrongful Discharge Claim
The legal standards governing plaintiff’s claim that he was discharged based on his
national origin have been articulated as follows:
. . . Under ELCRA, a plaintiff may prove discriminatory
treatment by presenting direct evidence or by presenting indirect or
circumstantial evidence. Sniecinski v. Blue Cross & Blue Shield of
Mich., 469 Mich. 124, 666 N.W.2d 186, 192 (2003). . . .
1. Direct evidence
Direct evidence is “evidence which, if believed, requires the
conclusion that unlawful discrimination was at least a motivating
factor in the employer’s actions.” Sniecinski, 666 N.W.2d at 192
(quoting Hazle v. Ford Motor Co., 464 Mich. 456, 628 N.W.2d 515
(2001)) (internal quotations omitted). It shows that the person who
made the challenged decision, or was otherwise meaningfully
involved in that decision, had a bias or that bias affected the
challenged decision. Nemet v. First Nat’l Bank of Ohio, No. 98-4076,
1999 WL 1111584, *4 (6th Cir. Nov. 22, 1999).
. . . Statements made by an immediate supervisor and decision
maker, that specifically and derogatorily reference an employee’s
national origin and that are in a close temporal proximity to the
termination decision, present sufficient evidence of causation. Id.
[DiCarlo v. Potter, 358 F.3d 408, 417 (6th Cir.2004)] at 417.
Conversely, a weaker temporal proximity requires a greater quantum
of evidence than in cases with a tighter time line of events. See id.
(distinguishing Hein v. All Am. Plywood, Co., 232 F.3d 482 (6th
. . . To prove an allegation of discrimination utilizing indirect
or circumstantial evidence, a plaintiff must proceed under the
evidentiary framework promulgated in McDonnell Douglas v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Sniecinski, 666
N.W.2d at 193. To establish discrimination under the McDonnell
Douglas framework, the plaintiff must first establish a prima facie
case of discrimination. 411 U.S. at 802. The burden then shifts to the
defendant to provide a legitimate nondiscriminatory reason for the
adverse employment action. Id. Once the defendant has met this
burden, the plaintiff is then afforded the opportunity to prove that the
defendant’s stated reason is a pretext for unlawful discrimination. Id.
a. Prima facie case
To establish a prima facie case of discrimination under
ELCRA, a plaintiff must prove four things: “(1) [he] belonged to a
protected class, (2) [he] suffered an adverse employment action, (3)
[he] was qualified for the position, and (4) [the adverse employment
action] occurred under circumstances giving rise to an inference of
unlawful discrimination.” Sniecinski, 666 N.W.2d at 193 (citing
Hazle, 464 Mich. 456, 628 N.W.2d 515; Lytle v. Malady, 458 Mich.
153, 579 N.W.2d 906, 916 (1998)); see also Town v. Mich. Bell. Tel.
Co., 455 Mich. 688, 568 N.W.2d 64, 68 (1997).
. . . Circumstances give rise to an inference of discrimination if the
employee “was treated differently than persons of a different class for
the same or similar conduct.” Singal v. Gen’l Motors Corp., 179
Mich.App. 497, 447 N.W.2d 152, 156 (1989); see also Quiros v.
Kalitta Flying Service, Inc., No. 229229, 2003 WL 21279591, *6
(Mich.Ct.App. June 3, 2003) (per curiam). In other words, the
plaintiff must show that “he was treated less favorably than a
similarly situated individual outside his protected class.” Howard v.
Family Indep. Agency, No. 243973, 2004 WL 243375, *4
(Mich.Ct.App. Feb. 10, 2004) (per curiam). “Employees are similarly
situated if all of the relevant aspects of their employment situations
are nearly identical.” Howard, 2004 WL 243375 at *4 (citing Town,
568 N.W.2d at 70.)
Alternatively, a plaintiff can demonstrate that the
circumstances give rise to an inference of discrimination if “the
person who terminated him was predisposed to discriminate against
persons in the affected class and had actually acted on that
disposition in discharging him.” Singal v. Gen’l Motors Corp., 179
Mich.App. 497, 447 N.W.2d 152, 156 (1989), see also Harrison, 572
N.W.2d at 682 n.6.
Hussain v. Highgate Hotels, Inc., 126 F.App’x 256, 262-65 (6th Cir. 2005).
With these standards in mind, the Court concludes that plaintiff has failed to state a
prima facie case regarding his claim that his national origin played a role in defendant’s decision to
terminate his employment. First, there is no direct evidence of such discrimination. As noted, direct
evidence, usually in the form of derogatory comments by a supervisor or decisionmaker, “‘requires
the conclusion that unlawful discrimination was at least a motivating factor in the employer’s
actions.’” Hazle v. Ford Motor Co., 464 Mich. 456, 462 (2001), quoting Jacklyn v. Schering-Plough
Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). “For example, a facially
discriminatory employment policy or a corporate decision maker’s express statement of a desire to
remove employees in the protected group is direct evidence of discriminatory intent.” Nguyen v.
City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). Further, “evidence of discrimination is not
considered direct evidence unless a racial motivation is explicitly expressed.” Amini v. Oberlin
Coll., 440 F.3d 350, 359 (6th Cir. 2006). The evidence in question must “lead ineluctably to the
conclusion” that the unlawful consideration played a role in the decision at issue. Id.
In the present case, plaintiff has no such evidence. His argument on this point is that
was terminated at the request of his supervisor Omais. (Exhibit G).
Omais is a different ethnicity than Plaintiff, is from a different region
of the Middle East than Plaintiff, and speaks a different language than
Plaintiff. Omais demonstrated her animus towards Plaintiff by
engaging in a pattern of behavior toward Plaintiff, the only employee
of Persian descent, which was condescending and rude. Specifically,
Omais (1) yelled at plaintiff on a regular basis, (2) spoke to outsiders
stating that Plaintiff was incompetent or useless, (3) engaged in silent
treatment toward Plaintiff after he reported Omais’ treatment, and (4)
[o]n various occasions used derogatory terms toward Plaintiff,
including the Arabic term “kossath.”
Pl.’s Br. at 9. None of these points, either together or in isolation, suggests that Omais treated
plaintiff badly because of his national origin. All plaintiff has shown is that Omais treated him
rudely, not that she did so because plaintiff is Persian. At his deposition, plaintiff testified he “felt”
Omais did not like him because he is Iranian, but he acknowledged she never said so and, in fact,
that she never said “anything to [plaintiff] that was derogatory towards Persians” and never
mentioned plaintiff’s Persian origin. Pl.’s Dep. at 56-57, 161-62. While plaintiff testified that
Omais cursed him with an Arabic word, which he believes means “fuck your sister,” he does not
know if it is derogatory towards Persians specifically. Id. at 154-55, 161. Plaintiff conceded that
he “automatically concluded” Omais’ treated him rudely because he is Persian. Id. at 180. Clearly,
this is not direct evidence of discriminatory animus because Omais never, as plaintiff has conceded,
“explicitly expressed” any anti-Persian bias, nor did she ever say or do anything that “lead[s]
ineluctably to the conclusion” that she was motivated by any such bias. Amini, 440 F.3d at 359.
Lacking direct evidence of discrimination, plaintiff must produce circumstantial
evidence showing that he was discharged “under circumstances giving rise to an inference of
unlawful discrimination.” Hazle, 464 Mich. at 463.1 As noted above, plaintiff generally must meet
this burden by showing that similarly situated employees outside of the protected class were treated
more favorably. Plaintiff
“need not demonstrate an exact correlation with the employee
receiving more favorable treatment in order for the two to be
considered ‘similarly-situated;’” rather, the plaintiff and the
employee with whom the plaintiff seeks to compare herself “must be
similar in ‘all of the relevant aspects.’” 154 F.3d 344, 352 (6th
Cir.1998) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d
796, 802 (6th Cir.1994)). This means the plaintiff must “prove that
all of the relevant aspects of his employment situation are ‘nearly
identical’ to those of [the non-minority] employees who he alleges
were treated more favorably.” Pierce, 40 F.3d at 802.
Hatchett v. Health Care and Retirement Corp. of Am., 186 F.App’x 543, 548 (6th Cir. 2006).
In the present case, plaintiff has not identified any non-Persian employees who were
not discharged under similar circumstances. In fact, plaintiff indicates that “[t]here are no
employees that were similarly situated to Plaintiff because no one else is in the same reporting
capacity as Plaintiff to Omais.” Pl.’s Br. at 12. Therefore, proof establishing the fourth element of
the prima facie case of discriminatory termination is absent.
Plaintiff can attempt to establish the fourth element of a prima facie case by pointing
For present purposes, the Court assumes that plaintiff has met the first three elements of
a prima facie case under the McDonnell Douglas framework, i.e., that he belongs to a protected
class, that he suffered an adverse employment action, and that he was qualified for the position
as lead pharmacy technician. While defendant argues plaintiff “cannot show that he was
qualified for the position . . . based on the mountain of record evidence that demonstrates
otherwise,” Def.’s Summ. J. Br. at 7, the Court may not “rely on defendant[’s]
non-discriminatory reasons for discharging [plaintiff] as grounds for finding [him] not qualified
for the position at the prima facie stage.” Kulik v. Med. Imaging Res., Inc., 325 F.App’x 413, 414
(6th Cir. 2009). As plaintiff worked for defendant as a lead pharmacy technician for nearly two
and one-half years before being discharged, the court assumes at this stage of the case that he
was at least minimally qualified for the position.
to other probative evidence suggesting that unlawful discrimination played a role in the discharge
decision. Yet plaintiff has produced no such evidence. Here he relies on evidence that relates
generally to his hostile work environment claim (i.e., Omais’ “ridicule and constant disrespect,” Pl.’s
Br. at 13), but which does not give rise to any inference that his national origin played any role in
defendant’s decision to discharge him.
Finally, plaintiff attempts to meet the fourth element of his prima facie case by
pointing to the fact that he was replaced by a non-Persian. The same attempt was made and rejected
Lastly, Hussain argues that there is an inference of discrimination
because he was replaced with an individual not shown to be a
member of his protected classes. One cannot establish a prima facie
case of discrimination, however, “merely by providing evidence that
a qualified minority candidate was rejected in favor of a qualified
nonminority candidate.” Hazle, 628 N.W.2d at 525. Thus, the mere
fact that Hussain was replaced with someone outside his protected
classes is insufficient to establish an inference of discrimination.
126 F.App’x at 265.
The Court concludes plaintiff has failed to state a prima facie case that defendant
discharged him, even in part, because of his national origin. Even assuming plaintiff had stated a
prima facie case, the Court also concludes that he has failed to cast sufficient doubt on defendant’s
nondiscriminatory explanation for discharging him to defeat defendant’s summary judgment motion.
As the Sixth Circuit has explained,
[a]n employee has three ways by which to prove the existence of
pretext: “(1) that the proffered reasons had no basis in fact, (2) that
the proffered reasons did not actually motivate his discharge, or (3)
that they were insufficient to motivate discharge.” Manzer v.
Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir.1994)
(quoting McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th
Cir.1993)); see also Dubey v. Stroh Brewery Co., 185 Mich.App. 561,
462 N.W.2d 758, 760 (1990).
The first type of showing is easily recognizable and
consists of evidence that the proffered bases for the
plaintiff's discharge never happened, i.e., that they are
“factually false.” The third showing is also easily
recognizable and, ordinarily, consists of evidence that
other employees, particularly employees not in the
protected class, were not fired even though they
engaged in substantially identical conduct to that
which the employer contends motivated its discharge
of the plaintiff....
The second showing, however, is of an entirely
different ilk. There, the plaintiff admits the factual
basis underlying the employer’s proffered explanation
and further admits that such conduct could motivate
dismissal. The plaintiff’s attack on the credibility of
the proffered explanation is, instead, an indirect one.
In such cases, the plaintiff attempts to indict the
credibility of his employer’s explanation by showing
circumstances which tend to prove that an illegal
motivation was more likely than that offered by the
defendant. In other words, the plaintiff argues that the
sheer weight of the circumstantial evidence of
discrimination makes it “more likely than not” that
the employer's explanation is a pretext, or coverup.
Manzer, 29 F.3d at 1084 (internal quotations and citations omitted).
“A reason cannot be proved to be ‘a pretext for
discrimination’ unless it is shown both that the reason was false and
that discrimination was the real reason.” St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
Hussain, 126 F.App’x at 265-66.
In the present case, the evidence shows that Omais orally warned plaintiff about his
work performance on September 2, 2009, and that this warning was followed by increasingly
detailed written criticism and improvement directives on September 15, October 16 and November
27, 2009. See Def.’s Ex. 5A-5D. Some of the issues had to do with plaintiff not preparing the work
schedule and workstation assignment board, not understanding the company’s new computer system,
not answering the telephone, not keeping the pharmacy area clean, not managing inventory
correctly, not interacting with customers appropriately, and not completing certain “training
modules.” See id. Plaintiff argues that an issue of fact exists regarding pretext because “[t]he
laundry list of deficiencies alleged by Omais, which appear to be the only deficiencies considered
in the decision to terminate, were completely fabricated.” Pl.’s Br. at 14. For support of this
statement, plaintiff cites only ¶ 70 of his affidavit, where he avers that “I watched many employees
succeed, be disciplined or demoted, or even fired during my time at CVS, I never saw anyone who
was treated like me.” This averment does not speak to the truth or falsity of the many deficiencies
in plaintiff’s performance which Omais noted in the above-referenced, detailed “coaching and
counseling” forms, all of which plaintiff signed. At his deposition, where he was questioned about
these forms at length (see Pl.’s Dep. at 86-170), plaintiff had no recollection about many of these
performance issues (e.g., greeting customers with a smile, completing action notes, answering the
telephone, resolving insurance issues, removing trash); and as to some of those he did recall,
plaintiff simply disagreed with Omais as to how the tasks should be performed (e.g., scheduling,
work assignment board, inventory). Regarding the three training modules Omais directed plaintiff
to complete, plaintiff could recall only completing one, but he could not recall which one. See id.
at 108, 137-39.
On this record, there is no genuine issue as to whether defendant’s proffered reason
for discharging plaintiff (i.e., poor performance) was a pretext for discrimination. There is no
evidentiary basis for a reasonable jury to find that the proffered reason is false, as plaintiff asserts.
Even if plaintiff could show that one or more of the items listed by Omais is false, he has presented
no evidence from which a jury could find that anti-Persian discrimination “was the real reason.”
Hicks, 509 U.S. at 515.
For these reasons, the Court concludes that plaintiff has neither stated a prima facie
case of national origin discrimination nor shown that defendant’s proffered reason for discharging
him was pretextual. The Court shall therefore grant summary judgment for defendant on this claim.
Plaintiff’s Hostile Work Environment Claim
The legal standards governing plaintiff’s claim that he was subjected to a hostile work
environment based on his national origin have been articulated as follows:
. . . To establish a hostile work environment under ELCRA,
a plaintiff must show five things: (1) the employee belonged to a
protected group; (2) the employee was subjected to communication
or conduct on the basis of his protected status; (3) such conduct or
communication was unwelcome; (4) the unwelcome conduct or
communication was intended to or in fact did substantially interfere
with the employee’s employment or created an intimidating, hostile,
or offensive work environment; and (5) respondeat superior. See
Chambers v. Trettco, Inc., 463 Mich. 297, 614 N.W.2d 910, 915
(2000). . . .
1. Intimidating, hostile, or offensive work environment
. . . “[W]hether a hostile work environment existed shall be
determined by whether a reasonable person, in the totality of the
circumstances, would have perceived the conduct at issue as
substantially interfering with the plaintiff’s employment or having the
purpose or effect of creating an intimidating, hostile, or offensive
environment.” Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155,
167 (1993). A single incident of harassment is generally not
sufficient to create a hostile work environment. Id. at 168. Rather, a
court should look at all of the circumstances “including the frequency
of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.” Clark County Sch., Dist. v. Breeden, 532 U.S. 268,
270-271, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (internal quotations
omitted) (quoting Faragher v. Boca Raton, 524 U.S. 775, 787-788,
118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). “Simple teasing, offhand
comments, and isolated incidents (unless extremely serious)” do not
rise to that level. Faragher, 524 U.S. at 788, quoted in Clark County
Sch. Dist., 532 U.S. at 271.
. . . For an employer to be liable on an employee’s hostile
environment claim, the employee must show “that the employer
failed to take prompt and adequate remedial action upon notice of the
creation of a hostile work environment.” Chambers, 614 N.W.2d at
916. . . . Notice of the hostile environment “is adequate if, by an
objective standard, the totality of the circumstances were such that a
reasonable employer would have been aware of a substantial
probability that . . . harassment was occurring.” Id. at 919.
Furthermore, an employer is not strictly vicariously liable merely
because a supervisor created the hostile environment. Id. at 916. The
employer must still have notice of the alleged harassment. Radtke,
501 N.W.2d at 169. This notice “can be shown by evidence that a
complaint was made to a higher management or that the employer
should have known about the harassment because of its
pervasiveness.” Jager v. Nationwide Truck Brokers, Inc., 252
Mich.App. 464, 652 N.W.2d 503, 510 (2001) (citing Sheridan v.
Forest Hills Public Schools 247 Mich.App. 611, 637 N.W.2d 536
(2001); Hartleip v. McNeilab, Inc., 83 F.3d 767, 776-777 (6th Cir.,
1996)) “The bottom line is that, in cases involving a hostile work
environment claim, a plaintiff must show some fault on the part of the
employer.” Chambers, 614 N.W.2d at 916.
Hussain, 126 F.App’x at 267-69 (footnote omitted).
Plaintiff bases his hostile work environment claim on his allegations that Omais
“blatantly treated Plaintiff less favorably than his co-workers who were not of Persian origin,” that
Omais “was disrespectful toward Plaintiff” and “would curse at Plaintiff in Arabic and call him
vulgar names based on his National Origin and religion (Muslim),” that he “was subject to
offensive communication, including ethnic slurs, [and] . . . unfair scrutiny and unwarranted
discipline . . . because of his national origin.” Compl. ¶¶ 22-24, 47-48.
Plaintiff has failed to state a claim for hostile work environment because he has
produced no evidence to support the second and fifth elements. Even assuming the other elements
have been established, there is no evidence that Omais’ communication or conduct toward plaintiff
had anything to do with his national origin. Plaintiff testified that Omais yelled at him, treated him
“like a servant, animal monster . . . very, very badly,” criticized his work unfairly, on one day
“called me kossath,” sometimes would not talk to him, and generally treated him rudely. See Pl.’s
Dep. at 150, 154, 163, 171-74. Nonetheless, plaintiff acknowledges that Omais never mentioned
his national origin, never made any derogatory comments regarding his national origin, that the
curse word is Arabic and plaintiff does not know if it is specifically derogatory toward Persians,
and that he simply assumed Omais mistreated him because of his national origin. See id. at 16162, 180. In short, there is no evidence linking plaintiff’s national origin with Omais’ treatment or
communications towards him.
Nor has plaintiff offered any evidence to establish the respondeat superior element
of this claim. Plaintiff concedes he never complained to higher management that he believed
Omais was discriminating against him because of his national origin. Plaintiff testified that his
only effort to put higher management on notice was to contact Omais’ supervisor, Sarita SaadeHarfouch, first by leaving a voicemail message and later by speaking with her in person. The
voicemail message was that Omais was “treating me like a servant, animal, monster, those things
. . . very, very badly.” See id. at 150. Sometime later, apparently in November 2009, plaintiff told
Saade-Harfouch in person that Omais called him “kossath” and was treating him badly, but
plaintiff never told her he believed Omais was discriminating against him because of his national
origin or religion. See id. at 153-54, 163-65. Under these circumstances, no reasonable juror could
find that defendant objectively should “have been aware of a substantial probability that [national
origin] harassment was occurring.” Chambers, 463 Mich. at 319.
The Court concludes that plaintiff’s hostile work environment claim fails because
he has produced no evidence showing that he “was subjected to communication or conduct on the
basis of” his national origin or that defendant was on notice that plaintiff was being mistreated
because of his national origin. The Court shall therefore grant summary judgment for defendant
on this claim.
Plaintiff’s Retaliation Claim
The legal standards governing plaintiff’s claim that he was discharged in retaliation
for complaining about his supervisor’s treatment of him have been articulated as follows:
. . . The ELCRA prohibits an employer from retaliating
against an employee who opposes a violation of the Act or makes a
charge, files a complaint, or participates in an investigation under the
Act. See Mich. Comp. Laws § 37.2701(a). In order to establish a
prima facie case of retaliation under the ELCRA, plaintiff must
establish: “(1) that [he] engaged in a protected activity; (2) that this
was known to the defendant; (3) that the defendant took an
employment action adverse to [him]; and (4) that there was a causal
connection between the protected and the adverse employment
action.” Barrett v. Kirtland Community College, 245 Mich.App. 306,
315, 628 N.W.2d 63 (Ct.App.2001).
. . . “[A]n employee need not specifically cite the [ELCRA]
when making a charge under the act.” Id. at 319, 628 N.W.2d 63.
However, “the employee must do more than generally assert unfair
treatment[,] . . . [he] must clearly convey to an objective employer
that the employee is raising the specter of a claim of unlawful
discrimination ....” Id.
. . . To establish a causal connection, plaintiff must show that
his participation in an 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. See Barrett, 245
Mich.App. at 315, 628 N.W.2d 63. “[P]roof of temporal proximity,
between the protected activity and the adverse employment action,
without more, is not sufficient to support a finding of a causal
connection.” Reisinger v. Ann Arbor Nights, Inc., No. 07–cv–13208,
2008 WL 5062888, at *10, 2008 U.S. Dist. LEXIS 10735, at *31
(E.D. Mich. Nov. 25, 2008). . . .
Third, if a plaintiff establishes a prima facie case, the burden
shifting analysis under McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies and a defendant
may rebut the plaintiff’s prima facie case by articulating a
“legitimate, non-discriminatory reason” for the adverse employment
action. See Morris v. Oldham County Fiscal Ct., 201 F.3d 784, 792
(6th Cir.2000); Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th
Cir.1998) (When a plaintiff establishes a prima facie case, “a
mandatory presumption of discrimination is created and the burden
shifts to the employer to proffer a non-discriminatory reason for” the
adverse employment action).
Stevens v. Estes Express Lines, 833 F. Supp. 2d 729, 735-37 (E.D. Mich. 2011) (footnote omitted).
This claim is based on plaintiff’s allegation that he “engaged in a protected activity
when he complained about the national origin discrimination by his immediate supervisor, and
reported her conduct to upper management [and] . . . [a] causal connection exists between Plaintiff’s
protected activity and Plaintiff’s discipline and subsequent termination.” Compl. ¶¶ 55, 58.
This claim fails because plaintiff has not produced evidence supporting the first,
second and fourth elements. Plaintiff testified at his deposition that he never complained to higher
management that Omais was discriminating against him because of his national origin. In his only
contacts with higher management – the voicemail message and the in-person meeting with SaadeHarfouch – plaintiff never indicated or even hinted that his national origin had anything whatsoever
to do with Omais’ treatment of him. In short, plaintiff never “clearly convey[ed] . . . that [he was]
raising the specter of a claim of unlawful discrimination.” Barrett, 245 Mich. App. at 319. This
simple fact makes it impossible for plaintiff to show that he engaged in protected activity, that
defendant was aware of protected activity, or that a causal connection exists between the protected
activity and any adverse employment action. Plaintiff correctly notes that he was not required to
use “the magic words ‘national origin discrimination.’” Pl.’s Br. at 19. Nonetheless, he was required
“do more than generally assert unfair treatment.” Barrett, 245 Mich. App. at 319.
For these reasons, the Court concludes that plaintiff has failed to state a claim for
retaliation under the ELCRA. The Court shall grant summary judgment for defendant on this claim.
For the reasons stated above, the Court finds that plaintiff has failed to state a claim
under the ELCRA for discriminatory discharge based on his national origin, hostile work
environment based on his national origin, or retaliation for engaging in protected activity.
IT IS ORDERED that defendant’s motion for summary judgment is granted.
Dated: November 20, 2012
S/ Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
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