Romain v. St. Joseph Mercy Hospital

Filing 29

Memorandum and Order Sustaining Defendant's 26 Objections and Adopting in Part and Rejecting in Part 25 Report and Recommendation and Granting Defendant's 18 Motion for Summary Judgment. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NICOLE ROMAIN,
Plaintiff,
v.

Case No. 11-15679

ST. JOSEPH MERCY HOSPITAL,

HON. AVERN COHN

Defendant.
___________________________________/
MEMORANDUM AND ORDER
SUSTAINING DEFENDANT’S OBJECTIONS (Doc. 26)
AND
ADOPTING IN PART AND REJECTING IN PART REPORT AND
RECOMMENDATION (Doc. 25)
AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 18)
I. Introduction
This is an employment discrimination case under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §2000e, et seq. Plaintiff, Nicole Romain, proceeding pro se, alleges
she was harassed, discriminated against, and eventually terminated by defendant St.
Joseph Mercy Hospital because she is a woman. The case was referred to a
magistrate judge for pretrial proceedings, before whom defendant filed a motion for
summary judgment. The magistrate judge considered the parties’ papers and held a
hearing on the motion, after which it issued a report and recommendation (MJRR),
recommending that defendant’s motion be granted in part and denied in part.
Specifically, the magistrate judge recommends that plaintiff’s claims relating to her

termination be dismissed with prejudice. The magistrate judge also recommends that
plaintiff be given “leave to amend her complaint to attempt to state an independent
claim of sex discrimination or harassment arising from the ‘uniform incident,’” in which
she alleges she was forced to wear a man’s uniform.
Before the Court are defendant’s objections to the MJRR.1 For the reasons that
follow, the objections will be sustained, the MJRR will be adopted in part and rejected in
part, and defendant’s motion for summary judgment will be granted.
II. Background
The MJRR accurately sets forth the facts. What follows are the background facts
relevant to the “uniform incident.”
Plaintiff began her employment with defendant on or about September 26, 2005
as a security officer. Her duties as a security officer included:
1. Monitor[ing] conditions and activities while patrolling the grounds, parking lots
and buildings. Ensur[ing] that relevant Health Center policies are followed and
violations are reported [and]
...
3. respond[ing] appropriately to a variety of potential and/or real emergencies,
alarms and extraordinary events.

1

Plaintiff has not objected to the MJRR and the time for filing objections has
passed. The MJRR was issued on January 18, 2013. Plaintiff had fourteen (14) days,
or until February 1, 2013 in which to file objections. Further, plaintiff had fourteen (14)
days to file a response to defendant’s objections. Defendant’s objections were filed on
February 1, 2014; a response was due on or before February 19, 2013. To date, no
response has been filed. However, on February 19, 2013, defendant filed a reply to its
objections. (Doc. 27). Exhibit A to the reply brief is a document from plaintiff which
purports to be a response to defendant’s objections. (Doc. 27-1). Plaintiff, however, did
not file this document with the Court. It appears that plaintiff has previously failed to file
papers with the Court. Instead, plaintiff mails them to defendant who in turn submits
them to the Court. It is plaintiff’s obligation, not defendant’s, to file her papers with the
Court.
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As to the “uniform incident,” acknowledging that the record was sparse,2 the
magistrate judge was able to discern the following from plaintiff’s response to
defendant’s motion and from the hearing:
It appears that in early 2010, Defendant changed the uniform worn by its
security officers. Plaintiff says the new uniform was a “men’s uniform”(Dkt. 24,
Ex. A, p. 7): the pants were straight-legged and could not fit a woman, like
herself, with a female shape and curves. Plaintiff says she “was refused a
women’s uniform” and “forced into a man [sic] uniform that didn’t fit” (Id. at p. 10).
On April 1, 2010, Plaintiff told her supervisor, Paul Adams, that she could not fit
into the pants to the new uniform. Adams became very hostile and repeatedly
told her to “make it work” (Id. at p. 8). He suspended Plaintiff without pay for two
weeks, presumably for not showing up to work in the pants to the new uniform
(Id.).
On April 4, 2010, Plaintiff filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”) about the uniform incident. A
month later, Plaintiff attended a meeting with Adams and a Human Resources
representative to discuss the matter. According to Plaintiff, Adams “got
belligerent during meeting [sic] and yelled, [sic] also hostile and left meeting” (Id.
at p. 8). Plaintiff says “she was forced to endure harassment from Paul Adams
following [her] EEOC complaint” (Id. at p. 10). She contends the uniform incident
precipitated a wide-ranging effort to retaliate against her, culminating in her
discharge. In her own words from the motion hearing: “it’s all over a uniform; its
always been about a uniform.”
(Doc. 25, MJRR, at p. 2-3. The magistrate judge later recommended that defendant’s
motion for summary judgment be denied “as to any discrimination or harassment claim
Plaintiff may have related to the uniform incident.” (Id.). However, the magistrate judge
was equivocal, if not skeptical, as to the viability of such a claim.
III. Review of MJRR
A district court must conduct a de novo review of the parts of a magistrate
2

Indeed, the magistrate judge stated that the facts regarding the uniform incident
were “pieced together” from plaintiff’s document entitled a “motion for summary
judgment” which was not filed with the Court but submitted by defendants, and the
audio-recording of the hearing on defendant’s motions. See Doc. 25, MJRR, at p. 2 n.
2.
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judge's report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). The
district "court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate" judge. Id. The requirement of de novo
review "is a statutory recognition that Article III of the United States Constitution
mandates that the judicial power of the United States be vested in judges with life
tenure." United States v. Sami, 754 F.2d 670, 672 (6th Cir. 1985).
A general objection, or one that merely restates the arguments previously
presented, is not sufficient to alert the court to alleged errors on the part of the
magistrate judge. An "objection" that does nothing more than state a disagreement with
a magistrate judge's suggested resolution, or simply summarizes what has been
presented before, is not an objection as that term is used in this context. Howard v.
Sec'y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 991) ("It is arguable in
this case that Howard's counsel did not file objections at all.... [I]t is hard to see how a
district court reading [the ‘objections'] would know what Howard thought the magistrate
had done wrong.").
IV. Analysis
Defendant objects as follows:
1.

Defendant objects to the Magistrate’s recommendation that Defendant’s
Motion for Summary Judgment be denied with regard to Plaintiff’s gender
discrimination and harassment claims arising out of “the uniform incident.”

2.

Defendant objects to the Magistrate’s recommendation that Plaintiff be
granted leave to amend her Complaint to state an “independent claim” of
discrimination and harassment relating to “the uniform incident” and be
permitted additional discovery on this issue.

Although defendant has raised two objections, they raise the same argument – that
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plaintiff should not be permitted to allege a separate claim regarding the uniform
incident. Defendant says that the “uniform incident” is not a separate claim, that plaintiff
has not supported any such claim with admissible evidence, and the magistrate judge’s
recommendation to grant plaintiff leave to amend, which she has not requested,
prejudices defendant and is “improper advocacy on behalf of the pro se plaintiff.”
As an initial matter, the Court does not find that the magistrate judge engaged in
improper advocacy on behalf of plaintiff. That said, the Court views the record
differently that the magistrate judge. The “uniform incident” does not stand as a
potential independent claim of harassment or discrimination. Rather, it is subsumed in
plaintiff’s overall discrimination claim – that she was terminated because of her gender.
The magistrate judge examined the record and determined, correctly, that plaintiff was
not terminated because of her gender. The “uniform incident” is but one of several
instances of gender discrimination plaintiff alleges she was subjected to which
culminated in her termination. This is made clearer in plaintiff’s recent paper, which
defendant attached to its reply in support of its objections. (Doc. 27-1). Plaintiff states
that she had to endure discrimination because of her gender, was harassed for “many
months” and then terminated in violation of Title VII. In short, there is no basis to
separate the “uniform incident” from the rest of plaintiff’s gender discrimination claim.
Moreover, while pro se litigants are to be treated with some leeway, a pro se
litigant is required to follow the rules of civil procedure and easily-understood court
deadlines, and assumes all of the risks and hazards that accompany
self-representation. Graham–Humphreys v. Memphis Brooks Museum of Art, Inc., 209

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F.2d 552, 561 (6th Cir. 2000). Here, defendant filed a motion for summary judgment
and supported the motion with admissible evidence which demonstrates that plaintiff
was terminated for legitimate reasons, not because of her gender. Plaintiff then had the
burden to come forth with admissible evidence3 to show that there is an issue for trial as
to gender discrimination. Plaintiff did not submit any evidence. Plaintiff instead made
unsupported assertions as to her employment conditions. That is not sufficient to
sustain her summary judgment burden. Thus, plaintiff’s failure to file a proper response
to defendant’s motion for summary judgment is also grounds for granting defendant’s
motion.
V. Conclusion
For the reasons stated above, defendant’s objections are SUSTAINED. The
MJRR is ADOPTED IN PART AND REJECTED IN PART. Defendant’s motion for
summary judgment is GRANTED. This case is DISMISSED.
SO ORDERED.
S/Avern Cohn
UNITED STATES DISTRICT JUDGE

Dated: February 21, 2013
3

Plaintiff has in fact failed to respond to defendant’s discovery requests. On
October 17, 2012, the magistrate judge granted defendant’s unopposed Motion to
Compel responses to Defendant’s First Requests for Production of Documents, and
ordered plaintiff to fully respond to the document requests by November 2, 2012. (Doc.
19). In the order, the magistrate judge cautioned plaintiff that if she fails to produce the
documents “she may be sanctioned up to and including the dismissal of this case.” (Id.)
Plaintiff did not respond to defendant’s document requests. See Defendant’s Reply
(Doc. 23). Despite obtaining no discovery from plaintiff, defendant went forward with a
well-supported motion for summary judgment. The magistrate judge did not address
plaintiff’s failure to comply with the order on defendant’s motion to compel.
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11-15679 Nicole Romain v. St. Joseph Mercy Hospital
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, February 21, 2013, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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