Bond v. Sodecia, N.A., Inc.

Filing 41

OPINION and ORDER Granting Defendant Aerotek, Inc.'s 32 MOTION for Summary Judgment and Defendant Sodecia, N.A., Inc.'s 33 MOTION for Summary Judgment. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KAMARA BOND,
Plaintiff,

Case No. 12-cv-15160
Hon. Matthew F. Leitman

v.
SODECIA N.A., INC. and,
AEROTEK, INC.
Defendants.
_________________________________/
OPINION AND ORDER GRANTING (1) DEFENDANT AEROTEK, INC.’S
MOTION FOR SUMMARY JUDGMENT (ECF #32) AND (2) DEFENDANT
SODECIA, N.A., INC’S MOTION FOR SUMMARY JUDGMENT (ECF #33)

INTRODUCTION
In 2011, Defendant Aerotek, Inc. (“Aerotek”), a staffing agency, hired
Plaintiff Kamara Bond (“Bond”) and placed her with one if its clients, Defendant
Sodecia N.A., Inc. (“Sodecia”). Bond asserts that after she began working at
Sodecia, Sodecia employees discriminated against her based on her race. On
December 6, 2011, Bond walked off the job and quit. She has now filed suit
against Sodecia and Aerotek, claiming they constructively discharged her in
violation of state and federal law anti-discrimination laws. Sodecia and Aerotek
have each moved for summary judgment on Bond’s claims. For the reasons
explained below, the Court grants both motions.
1

FACTUAL BACKGROUND
A.

Aerotek’s Relationship With Sodecia
Aerotek is a staffing company that hires temporary workers and places them

with companies across the United States. (See Statement of Material Facts Not in
Dispute (“SOF”), ECF #33-1 at ¶1.)1 On January 17, 2011, Aerotek executed a
“Services Agreement” with Sodecia, an automotive supplier, “under which
Aerotek agreed to provide Contract Employees to Sodecia.” (SOF at ¶2; See also
the “Services Agreement” ECF #33-3, Pg. ID 292-295.)

Pursuant to this

agreement, Aerotek placed its employees at a Sodecia facility inside a General
Motors (“General Motors”) plant in Lake Orion, Michigan.
Aerotek remained the employer of the contract employees it placed with
Sodecia. Indeed, the Services Agreement expressly required Aerotek to provide
“any salary or other benefits to [the] Contract Employees;” to make “all
appropriate tax, social security, Medicare, and other withholding deductions and
payments[;] and [to] provide worker’s compensation insurance for its Contract
Employees…” (Services Agreement at § 3, Pg. ID 292.) While Aerotek employed
the workers, Sodecia “control[led], manage[d] and supervise[d]” their work. (SOF
at ¶3, quoting the Services Agreement at § 2.2, Pg. ID 292.)

1

Unless otherwise stated, Bond has admitted all references the Court has cited
from Aerotek’s “Statement of Material Facts Not in Dispute.” (See Bond’s Br.,
ECF #36 at 6-9, Pg. ID 465-468.)
2

B.

Aerotek Hires Bond and Places Her With Sodecia, and Bond
Acknowledges That Aerotek is Her Employer
In July 2011, Aerotek hired Bond and assigned her to work at Sodecia’s

Lake Orion facility. (SOF at ¶13.)

Bond worked for Sodecia as a “Quality

Inspector.” (Id. at ¶14.) Bond “understood that…while she would be working for
and at Sodecia, she would be employed by Aerotek.” (Id. at ¶6.)
Before Bond began work, she “completed Aerotek’s pre-employment
paperwork, including (a) Aerotek’s ‘Policies and Procedures Statement’; and (b) an
‘Employee Acknowledgment Form.’” (SOF at ¶8.) Bond also received Aerotek’s
“Contract Employee Handbook.” (Id. at ¶11.) In the “Policies and Procedures
Statement,” Bond acknowledged that:
 “Upon becoming an Aerotek employee, all mandatory
benefits … will be paid by Aerotek”;
 “[She] underst[ood] that if [she] should have any
unexcused incidents of tardiness or absence, Aerotek
may elect to terminate [her] employment”; and
 “[She] underst[ood] that if terminated from an
assignment, [she would] contact Aerotek immediately to
make arrangements to receive [her] paycheck.”
(Id. at ¶9; See also Policies and Procedures Statement, ECF #33-6, Pg. ID 348349.) Likewise, in the “Employment Acknowledgment Form,” Bond confirmed
that she had “entered into [an] employment relationship with Aerotek.” (Id. at ¶10;
See also Employment Acknowledgment Form, ECF #33-7, Pg. ID 350.)
3

C.

The Initial Alleged Discrimination by Sodecia Employees
Bond says that she began to experience and/or witness incidents of racial

discrimination by Sodecia employees in August 2011. For example, Bond says
that a Sodecia human resources employee named Diane “told [all of] the
employees they were no longer allowed to wear [their] hats to the back.” (SOF at
¶24.) According to Bond, Diane “was looking directly at a black male employee
when she [explained the policy].” (Bond Deposition, ECF #33-5 at 103, Pg. ID
103.) Bond says that following Diane’s pronouncement, black workers (including
Bond) were not allowed to wear their hats facing backwards, but “Sodecia allowed
two Caucasian employees to continue to wear their hats backwards.” (SOF at ¶26;
Bond Dep at 69, Pg. ID 311 and 103, Pg. ID 318.)2
Bond claims that Sodecia later barred workers from wearing jewelry on the
job, but she says that Sodecia selectively enforced this policy in a discriminatory
manner. Specifically, she asserts that Sodecia forbade African Americans from
wearing jewelry but “permitted three Caucasian employees to continue to wear
jewelry.” (SOF at ¶26; See also Interrogatory Responses, ECF #33-12 at ¶7.)
Next, Bond says that when a “Floor Inspector” position became available,
Sodecia passed her over and instead “promoted” a white employee, Janice Laidler

2

Bond admitted, however, that she was unaware if Sodecia ever disciplined these
white workers for violating the company’s hat policy. (Bond Dep. at 105, Pg. ID
318.)
4

(“Laidler”). (See Bond Dep. at 106-107, Pg. ID 319.) Bond believed that Laidler
was less qualified for the position because Laidler worked at Sodecia for less time
than Bond. (See id. at 90-91, Pg. ID 315.)
Finally, Bond says that in October 2011, Sodecia Plant Manager Jeff Kalil
(“Kalil”) “gathered a group of [African American] employees together and told
them (a) ‘monkeys can do better than ya’ll can’; and (b) ‘if he could get real
monkeys to do their job he would. But since they have a brain he was stuck with
them.’” (SOF at ¶29.) Following that meeting, Bond reported her concerns about
Kalil’s comments to her Aerotek recruiter Ryan Stamper (“Stamper”). (Id. at ¶31.)
Stamper relayed Bond’s concerns to Sodecia, and Sodecia commenced an
investigation. (Id. at ¶32.) Sodecia determined that Kalil’s comments were not
intentionally discriminatory but were nonetheless inappropriate.

Sodecia

“counseled [Kalil] on appropriate conduct and acceptable and unacceptable types
of references in discussion with employees and [instructed Kalil] that regardless of
what was said or the intent behind his comments, perception is reality.”
(Investigation Summary, ECF #33-13.)
None of this alleged discrimination was severe enough to cause Bond to
quit. On the contrary, despite this alleged misconduct, Bond said that she “enjoyed
working at Sodecia” and, right up until the day she walked off the job, Bond had
no intention of leaving. (Bond Dep. at 111, 114, Pg. ID 320, 321.)
5

D.

Kalil Demands That Bond Apologize to a GM Forklift Driver; Bond
Refuses and Walks off the Job
According to Bond, in early December 2011, Kalil engaged in an act of

discrimination that compelled her to quit. Kalil’s conduct was related to a dispute
between Bond and a forklift driver in the Lake Orion plant. The driver “was an
employee of GM, not Aerotek or Sodecia.” (SOF at ¶43.)
In late 2011, Bond and the driver had an ongoing dispute about whether
Bond was improperly walking through the driver’s route – an area marked off by
lines on the plant floor and known as the “orange crush zone.” (SOF at ¶41.) Bond
says that during the dispute the “forklift driver threatened to run her over with his
forklift.” (Id. at ¶43.) Bond reported the alleged threats to a Sodecia employee
named “Diane,” and, after Diane spoke to a GM supervisor (Bond Dep. at 118-119,
Pg. ID 322), the threats stopped. (Id. at 120, Pg. ID 322.)
Although

the

threats

ceased,

Bond

contends

that

she

and

“the GM forklift driver continued to bicker about her walking through his work
area.” (Id. at ¶47.)

Bond admitted that she likely cursed at the driver and

“probably [told] him to shut the fuck up or something.”

(Id. at ¶48.)

This

“bickering” culminated with an incident on December 6, 2011, when Bond again
walked through the forklift driver’s route without authorization and had a final
confrontation with the forklift driver. (Id. at ¶49.) The driver then told Kalil that
Bond had been abusive towards him and had cursed at him. “He [the driver] told
6

[Kalil] that … if Sodecia did not address Bond’s attitude and her unsafe practice,
he would file a formal complaint with [GM] and the UAW.” (Kalil Aff. at ¶18.)
Because GM had previously complained to Sodecia about its “employees
[attempting] to cut through the orange crush zone in violation of the plant’s safety
rules, [] [Kalil] was concerned about this issue becoming a source of significant
conflict between [Sodecia] and [its] customer [GM].” (Id. at ¶19.)
In order to try to defuse the situation, Kalil “approached [Bond], told [Bond]
that she needed to respect Sodecia’s suppliers (i.e. GM), and demanded that she
apologize to the GM forklift driver.” (SOF at ¶50.) Bond refused, “told [] Kalil
that she would not apologize to the GM forklift driver … and then she left.” (Id. at
¶51.) According to Bond, “[h]ad [she] not been disrespected on December 6th”
and “[h]ad [Kalil] not approached [her] that day” and directed her to apologize, she
would “still be working at [Sodecia].” (Id. at ¶¶56-57.)
F.

Aerotek Searches for Additional Work for Bond After She Leaves
Sodecia
After leaving Sodecia’s facility, Bond called her Aerotek recruiter, Stamper,

and told him that she had “just walked off the job that he sent [her] to” at Sodecia.
(Id. at ¶52; See also Bond Dep. at 44-45, Pg. ID 306.) Stamper believed that Bond
“did a really good job” at Sodecia, and he noted he would “use [Bond] again.” (Id.
at ¶53; See also Electronic Notes, ECF #33-11 at 2.) In the following months,
Stamper and other Aerotek recruiters contacted Bond “several times” in an effort
7

to place her with other Aerotek clients. (See id. at ¶63; Bond Dep at 34-37, Pg. ID
304; Electronic Notes at 1.)
G.

Sodecia’s Response to Bond’s Claims of Discrimination
Sodecia asserts that Bond has omitted some crucial details from her

allegations of discrimination. For example, Sodecia admits that it hired Laidler,
not Bond, for the Floor Inspector position, but Sodecia has presented
uncontroverted evidence that Laidler actually had twelve years’ experience in parts
inspection at other companies (Laidler Affidavit, ECF #32-9 at ¶2), and was
therefore more qualified than Bond (or anyone else) for the position. (Hooper
Affidavit, ECF #32-8 at ¶2.) In addition, Sodecia notes that the Floor Inspector
position was not a “promotion,” as Bond has called it, because it had the “same
rate of pay, benefits and hours of work” as Bond’s “Quality Inspector” position.
(Laidler Affidavit, ECF #32-9 at ¶4.)
Sodecia also explains that while it did prohibit workers from wearing
baseball caps backwards, from wearing hats with non-Sodecia logos, and from
wearing “various kinds of jewelry around moving machinery,” these policies were
put in place to make Sodecia’s workplace appear more professional and to ensure
the safety of its workers. (Kalil Aff. at ¶¶12-14.)

Sodecia also says that these

policies were applied “across the board” to all workers regardless of race. (Kalil
Aff. at ¶¶15.)
8

PROCEDURAL HISTORY AND BOND’S CLAIMS IN THIS ACTION
Two days after she walked off the job at Sodecia, Bond filed a “Charge of
Discrimination” with the EEOC. (Id. at ¶64; See also the “Charge” at ECF #3314.) The Charge named only Sodecia; it did not name Aerotek. (Id. at ¶65; See
also the Charge, ECF #33-14.) In the Charge, Bond said that she “believe[d] she
was discriminated and retaliated against, subjected to different terms and
conditions of discrimination, denied a promotion … and told that a monkey could
do my job because of my race (African American) in violation of Title VII…”
(The Charge, ECF #33-14.)
After EEOC procedures failed to resolve Bond’s dispute, the EEOC issued
Bond a “right to sue” letter. Bond thereafter filed suit in this Court against both
Sodecia and Aerotek. (See Compl. at ECF #1 and First. Am. Compl. at ECF #5.)
In her Amended Complaint, Bond outlines the various incidents of discrimination
she claims to have suffered, including being passed over for the Floor Inspector
position (First Am. Compl. at ¶10), the disparate treatment of employees related to
the wearing of hats and jewelry (id. at ¶¶12-13), Kalil’s “monkey” comments (id.
at ¶14), and Kalil’s demand that Bond apologize the GM forklift driver. (Id. at
¶16.) Bond concludes by alleging that she “was constructively discharged from
her employment with Sodecia.” (Id. at ¶17.)

9

Bond brought her “constructive discharge” claims under both federal and
state law. In Count I of her Amended Complaint, Bond claims that the Defendants
violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”). (Id. at ¶¶19-26.) Specifically, Bond alleges that “Defendants … were
predisposed to discriminate on the basis of race and acted in accordance with that
predisposition.”

(Id. at ¶21.)

Bond also claims that “her employment was

adversely affected when the Defendants allowed a pattern, practice and culture of
racial discrimination to exist in the workplace.” (Id. at ¶22.) These actions, Bond
says, “caused [her] to become constructively discharged from her employment
with Sodecia.” (Id. at ¶23(h).) In Count II of the Amended Complaint, Bond
makes the same allegations and claims that Defendants’ actions violated
Michigan’s Elliot-Larsen Civil Rights Act, MCL § 37.2101 et seq. (the “ELCRA”).
(Id. at ¶¶28-35.)
Following the close of discovery – during which Bond apparently did not
take a single deposition – Sodecia and Aerotek each moved for summary
judgment. (See ECF #32, 33). With their motions, Defendants also submitted
“Statements of Material Fact Not in Dispute,” and Bond admitted nearly all of
facts identified by Defendants as undisputed. (See, e.g., Bond’s Br., ECF #36 at 69, Pg. ID 465-468.) The Court now grants both motions for summary judgment.

10

GOVERNING LEGAL STANDARD
A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact....” U.S. SEC v. Sierra Brokerage Services,
Inc., 712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52, (1986)) (quotations omitted). When reviewing the record,
“the court must view the evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in its favor.” Id. “The mere existence of a
scintilla of evidence in support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252. Moreover, “[i]n order to survive a motion for summary
judgment, the non-moving party must be able to show ‘sufficient probative
evidence [that] would permit a finding in [their] favor on more than mere
speculation, conjecture, or fantasy.’” Arendale v. City of Memphis, 519 F.3d 587,
605 (6th Cir. 2008) (citing and quoting Lewis v. Philip Morris Inc., 355 F.3d 515,
533 (6th Cir. 2004)).
ANALYSIS
A.

Sodecia is Entitled to Summary Judgment
Sodecia has moved for summary judgment on Bond’s Title VII and ELCRA

claims. “Cases brought pursuant to the ELCRA are analyzed under the same
evidentiary framework used in Title VII cases.” Humenny v. Genex Corp., 390
11

F.3d 901, 906 (6th Cir. 2004). The Court will therefore analyze Bond’s federal
and state-law discrimination claims together.
1.

Title VII’s Standards for Adverse Employment Actions and
Constructive Discharge

Title VII prohibits employers from “discriminat[ing] against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race.” 42 U.S.C. § 2000e–2(a)(1). “A plaintiff may
establish a claim of discrimination [under Title VII] either by introducing direct
evidence of discrimination or by presenting circumstantial evidence that would
support an inference of discrimination.” Laster v. City of Kalamazoo, 746 F.3d
714, 726 (6th Cir. 2014). Bond does not dispute that her claim is largely premised
on circumstantial evidence (see Bond’s Br., ECF #35 at 13-15, Pg. ID 404-404),
and that she therefore has the initial “burden of establishing a prima facie case [of
discrimination].” Laster, 746 F.3d at 726-727 (internal citations omitted).

A

plaintiff who cannot make this initial prima facie showing cannot escape summary
judgment.
To establish a prima facie showing of discrimination under Title VII (and
the ELCRA), Bond must demonstrate that “1) [s]he is a member of a protected
class; 2) [s]he was qualified for the job and performed it satisfactorily; 3) despite
[her] qualifications and performance, [s]he suffered an adverse employment action;
and 4) [s]he was replaced by a person outside the protected class or was treated
12

less favorably than a similarly situated individual outside of his protected class.”
Id.
“In the context of a Title VII discrimination claim, an adverse employment
action is defined as a materially adverse change in the terms or conditions of
employment.”

Id. (internal quotation marks omitted).

Such “[a]n adverse

employment action constitutes a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits … In
addition, it typically inflicts direct economic harm.” Id. (internal quotations and
quotation marks omitted).
A Title VII plaintiff may also “establish an adverse employment action by
demonstrating that she was constructively discharged.” Logan, 259 F.3d at 568.
“A constructive discharge occurs when the employer, rather than acting directly,
deliberately makes an employee's working conditions so intolerable that the
employee is forced into an involuntary resignation.” Laster, 746 F.3d at 727. “To
demonstrate a constructive discharge, Plaintiff must adduce evidence to show that
1) the employer ... deliberately create[d] intolerable working conditions, as
perceived by a reasonable person, and 2) the employer did so with the intention of
forcing the employee to quit....” Logan, 259 F.3d at 568-569 (internal quotation
marks omitted).
13

In order to determine “whether a reasonable person would have [felt]
compelled to resign,” a court should consider the following factors “singly or in
combination: (1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to
work under a younger supervisor; (6) badgering, harassment, or humiliation by the
employer calculated to encourage the employee's resignation; or (7) offers of early
retirement or continued employment on terms less favorable than the employee's
former status. Laster, 746 F.3d at 728. “The test deliberately sets a high bar, as the
law generally expects employees to remain on the job while pursing relief from
harassment.” McKelvey v. Sec. of the United States Army, 450 Fed. App’x. 532,
535 (6th Cir. 2011). In addition, when “determin[ing] if there is a constructive
discharge, both the employer's intent and the employee's objective feelings must be
examined.”

Logan, 259 F.3d at 569.

“A plaintiff must show the employer

intended and could reasonably foresee the impact of its conduct on the employee.”
Ford v. General Motors Corp., 305 F.3d 545, 554 (6th Cir. 2012).
2.

Bond Has Failed to Establish a Prima Facie Case of
Discrimination Under a Constructive Discharge Theory

Bond claims that Sodecia unlawfully discriminated against her when it
“constructively discharged” her due to her race. (See Bond’s Br., ECF #35 at 1518, Pg. ID 406-409.) Sodecia is entitled to summary judgment on this claim for
two reasons. First, Sodecia did not constructively discharge Bond. Second, even if
14

Bond could establish a constructive discharge, she has failed to create a material
factual dispute as to whether her race motivated the discharge.

Bond’s

constructive discharge theory of race discrimination therefore fails as a matter of
law.
a.

Sodecia Did Not Constructively Discharge Bond

As noted above, an employer constructively discharges an employee where
the employer “deliberately create[s] intolerable working conditions, as perceived
by a reasonable person” and does “so with the intention of forcing [the employee]
to quit.” Laster, 746 F.3d at 726-727. Bond has not made the required prima facie
showing on either element.
Bond asserts that her working conditions at Sodecia were “intolerable”
because, among other things, Sodecia treated its African American and white
workers differently with respect to the wearing of hats and jewelry and because
Kalil used the racially-insensitive term “monkey.” (Bond’s Br., ECF #35 at 16-17,
Pg. ID 407-408.) But to qualify under a constructive discharge theory, the conduct
must be “sever[e]” and “humiliating,” not a collection of “mere offensive
utterance[s].” Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 635 (6th Cir. 2003).
Bond has failed to satisfy that standard. Indeed, as Bond herself has stressed, up
until her very last day of work, she “enjoyed working at Sodecia” and “did not
want to leave her employment.” (Bond’s Br., ECF #35 at 7, Pg. ID 398.) The fact
15

that Bond continued to work at Sodecia for months after the company’s workers
allegedly discriminated against her cuts strongly against a finding that the
environment was so toxic that she felt compelled to “quit, rather than tolerate it for
one more day.” Goldmeier, 337 F.3d at 635.
Moreover, Bond has failed to establish that Sodecia undertook an intentional
effort to get her to quit. In fact, the record shows just the opposite: when Bond
raised concerns about her work environment with Sodecia, it acted to address her
concerns and to improve her working environment. For example, when Bond
complained to “Diane” about threats from the GM forklift driver, Sodecia raised
the concerns with GM (Bond. Dep. at 118-119, Pg. ID 322), and the threats
stopped. (See id. at 120, Pg. ID 322.) And when Bond raised concerns about
Kalil’s “monkey” comments, Sodecia commenced an investigation, and it
counseled Kalil in an effort to prevent further issues. (SOF at ¶¶31-32; See also
Investigation Summary, ECF #33-13.)
Bond tries to save her constructive discharge claim by arguing that her
working conditions became intolerable on December 6, 2011, when Kalil
demanded that she apologize to the GM forklift driver. But Bond has failed to
show that Kalil’s demand that Bond was improper. As Kalil explained in his
undisputed affidavit, he insisted that Bond apologize because, based on prior
communications from GM, he “was concerned about [the dispute between Bond
16

and the GM employee] becoming a source of significant conflict between
[Sodecia] and [its] customer [GM].” (Kalil Aff. at ¶19.) Kalil’s requirement that
Bond apologize did not transform a working environment that Bond “enjoyed” into
an objectively unbearable one. Moreover, Bond failed to present evidence that
Kalil acted with the intent to force Bond to quit. Bond has not, for example,
presented any facts to challenge Kalil’s statements that he “did not expect [his
demand she apologize] to become a major incident,” and that he had “no idea that
[Bond] would react in the way she did.” (Id. at ¶20.) Bond simply has no
evidence that Kalil or Sodecia acted with the necessary intent. Bond therefore has
failed to establish a prima facie case that Sodecia constructively discharged her.
b.

Even if Bond Could Establish a Constructive Discharge, She
Has Not Established the Discharge Was Racially Motivated

Even if Bond’s confrontation with Kalil amounted to a constructive
discharge (and it did not), her discrimination claims would still fail because Bond
has failed to present evidence that Kalil’s demand that she apologize had anything
to do with her race. See, e.g., Trepka v. Board of Educ., 28 Fed. App’x 455, 462
(6th Cir. 2002) (“[C]onduct that forces an employee to quit, constituting
‘constructive discharge,’ is actionable only if the conduct is motivated by
discriminatory intent against a protected employee characteristic.”). As described
above, in Kalil’s undisputed affidavit, he explained that he directed Bond to
apologize in order to avoid a problem with GM. Bond has not countered Kalil’s
17

explanation with any evidence that Kalil’s apology demand was driven in any way
by racial animus.

For example, Bond has not presented any evidence that Kalil

allowed white employees to curse at General Motors employees without
consequence while forcing black employees, like Bond, to apologize for similar
actions.

Because Bond has not presented any evidence that her alleged

constructive discharge was tied to her race, Sodecia is entitled to summary
judgment.
3.

Bond Has Failed to Establish a Prima Facie Case of
Discrimination Related to Sodecia’s Decision Not to Hire Bond as
Floor Inspector

Bond also argues that Sodecia unlawfully discriminated against her when it
“promoted” Laidler, rather than her, to the Floor Inspector position. This claim
fails as a matter of law for two independent reasons.
First, Bond has failed to show that the Floor Inspector position would have
been a promotion for Bond such that Sodecia’s decision to give the position to
Laidler could be considered an adverse employment action. As Laidler explained
in her sworn affidavit, the “position of Floor Inspector was not a promotion from
the position of Quality Inspector.” (Laidler Affidavit, ECF #32-9 at ¶4.) The two
positions have the “same rate of pay, benefits and hours of work.” (Id.) And the
responsibility in both jobs is “to inspect the quality of the parts produced in the

18

work cells.” (Id.) The “only difference between the jobs” is that a Floor Inspector
“could be directed to inspect parts from different work cells.” (Id.)
In her brief opposing Sodecia’s motion for summary judgment, Bond asserts
that the Floor Inspector position “required more work, supervisory duties … and is
a ‘stepping stone’ position that helps lead to higher paying positions” (Bond’s Br.,
ECF #35 at 18, Pg. ID 409), but Bond cites absolutely no evidence in the record to
that effect. This Court is not required to search the record for evidence supporting
Bond’s naked assertion about the differences between the two positions, see, e.g.,
Hollon ex rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006),
and Bond’s failure to cite evidence establishing any meaningful differences
between the two positions dooms her claim that Sodecia subjected her to an
adverse employment action when it did not assign her to the Floor Inspector
position.
Second, even if Bond could show that she suffered an adverse employment
action when Sodecia assigned Laidler, instead of Bond, to the Floor Inspector
position, Bond’s claim would still fail because she has not shown that she was
“similarly-situated” to – i.e., that she had “similar qualifications” as – Laidler. The
undisputed facts unequivocally establish that Laidler had substantially more
experience in parts inspection than Bond – twelve years prior experience for
Lailder, zero years for Bond – and, thus, that Laidler was far more qualified than
19

Bond for any position involving parts inspection – including, of course, the Floor
Inspector position. So, even if the Floor Inspector position was a promotion,
Laidler’s superior qualifications are fatal to Bond’s claim that Sodecia unlawfully
discriminated against Bond when it assigned Laidler to that position. See, e.g.,
White v. Columbus Metropolitan Housing Authority, 429 F.3d 252, 242 (6th Cir.
2005) (affirming dismissal of Title VII claim and finding plaintiff failed to make
prima facie case of discrimination when he was not as qualified as person who
received a promotion). As in White, “[c]omparing the qualifications of [Bond] and
[Ladlier, who had twelve-years prior experience in parts inspection], it is clear that
[Ladlier] has superior experience in material and relevant respects, and therefore,
[Bond] and [Ladlier] cannot be considered similarly qualified for the position, as
required to meet … [Bond’s] prima facie burden.” Id. at 244.
B.

Aerotek is Entitled to Summary Judgment
Aerotek has also moved for summary judgment. (See ECF #33.) It does so

on two grounds. First, Aerotek argues that Bond’s Title VII claim fails because
Bond failed to name Aerotek in the Charge. (See id. at 10-16, Pg. ID 255-261.)
Second, Aerotek argues that Bond’s Title VII and state-law ELCRA claims fail
because it did not take any adverse employment action against her and did not
discriminate against her in any way. (See id. at 16-25, Pg. ID 261-270.) The Court
agrees and for all of the reasons stated below, grants Aerotek summary judgment.
20

1.

A Party Must Be Named in an EEOC Charge Before That Party
Can Be Sued Under Title VII Unless an “Identity of Interest”
Exists

“[A]n administrative charge must be filed with the EEOC before a
discrimination plaintiff can bring a Title VII action in federal district court.”
Romain v. Kurek, 836 F.2d 241, 245 (6th Cir. 1987). “A corollary of this general
rule is that a party must be named in the EEOC charge before that party may be
sued under Title VII….’” Id. (emphasis in original) (quoting Jones v. Truck
Drivers Local Union No. 299, 748 F.2d 1083, 1086 (6th Cir. 1984)). Requiring a
plaintiff to name the Title VII defendant in the charge filed with the EEOC
advances two primary goals:
First, the charge serves to notify the defendant of the
discrimination claim alleged against him. By receiving
notice of the claim, a defendant is able to preserve
evidence that could be useful in his defense. Second, by
naming the charged party and bringing him before the
EEOC, that person is able to participate in conciliation
efforts directed at securing voluntary compliance with the
Act. Conciliation is a primary goal of Title VII and
provides an avenue for compliance without the resort to
the expense and inconvenience of litigation.
Id. (internal citations omitted).

21

“The failure to name a Title VII defendant as a respondent in the EEOC
charge,” however, “will be excused if an ‘identity of interest’ is found to exist
between the named and unnamed parties.” Id. “A clear identity of interest implies
that the named and unnamed parties are virtual alter egos … [and not] two distinct
entities with different business operations.” Knafel v. Pepsi-Cola Bottlers, Inc.,
899 F.2d 1473, 1481 (6th Cir. 1990) (concluding that dismissal of three defendants
not named in EEOC charge “was proper”). The “identity of interest” exception
“acknowledges the reality that laymen, unassisted by trained lawyers, initiate the
process of filing a charge with the EEOC, and accordingly prevents frustration of
the remedial goals of Title VII by not requiring procedural exactness in stating the
charge.” Id.
The Sixth Circuit uses two tests for determining whether a party shares an
“identity of interest” with another party that would excuse a failure to name the
party on the EEOC charge. See Romain, 836 F.2d at 245. Under the first test, “an
identity of interest” exists “where the unnamed party has been provided with
adequate notice of the charge under circumstances which afford him an
opportunity to participate in conciliation proceedings aimed at voluntary
compliance.” Romain, 836 F.2d at 245 (citing Eggleston v. Chicago Journeymen
Plumbers’ Local Union No. 130, 657 F.2d 890, 905 (7th Cir. 1981)). Under
second test, a court “looks at the relationship between the named and unnamed
22

parties at the time the charge is filed and conciliation efforts occur.” Id. at 245-46.
In looking at the relationship, a court examines four factors:
(1) [W]hether the role of the unnamed party could
through reasonable effort by the complainant be
ascertained at the time of the filing of the EEOC
complaint;
(2) [W]hether, under the circumstances, the interests of a
named [party] are so similar as the unnamed party's that
for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the
unnamed party in the EEOC proceedings;
(3) [W]hether its absence from the EEOC proceedings
resulted in actual prejudice to the interests of the
unnamed party;
(4) [W]hether the unnamed party has in some way
represented to the complainant that its relationship with
the complainant is to be through the named party.
Id. at 246 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)).
Bond’s failure to name Aerotek in the Charge requires dismissal of her claims
against Aerotek under both tests.
2.

Aerotek is Entitled to Summary Judgment on Bond’s Title VII
Claim Because Bond Did Not Name Aerotek in the Charge

Bond admits that she named only Sodecia, and not Aeortek, in the Charge.
(See, e.g., Bond’s Br., ECF #36 at 19-21, Pg. ID 478-480.) Bond argues, however,
that she may nevertheless bring her Title VII claim against Aeotek because the
firm shares an “identity of interest” with Sodecia. (Id.) Bond says that “the
23

relationship between [Aerotek and Sodecia] was much more than [normally exists
with] a typical staffing company,” and therefore she did not have to name Aerotek
in her EEOC charge. (Id.) Bond is incorrect. The record conclusively establishes
that Aerotek and Sodecia are not “virtual alter egos,” do not share an “identity of
interest,” and are, instead, “two distinct entities with different business operations.”
Knafel, 899 F.2d at 1481.
Indeed, when the Court applies both tests for “identity of interest” that the
Sixth Circuit outlined in Romain, Bond falls far short of identifying a question of
material fact on this issue. Bond fails the first test because she has presented no
evidence that Aerotek had notice of or an “opportunity to participate in conciliation
proceedings aimed at voluntary compliance…” Romain, 836 F.2d at 245.

3

Bond likewise is unable to establish an “identity of interest” under Romain’s
second (four-part) test. Under the test’s first component, the Court must determine
if, “through reasonable effort,” Bond would have been able to ascertain Aerotek’s
“role.” Id.

And although Bond claims that it was not “unreasonable for [her] to

3

Even if Aerotek had learned of the EEOC charge by, for example, having its
employees appear as witnesses – and Bond has presented no evidence that it did –
that still would not be enough to satisfy her burden: “Mere notice of the EEOC
investigation [] is insufficient to satisfy the test … An employee’s attendance as a
witness at a mediation proceeding for resolving Plaintiff’s claims … is insufficient
to create an identity of interest because [the unnamed party] was not provided an
opportunity to conciliate with Plaintiff on its own behalf.” Weatherspoon v. North
Oakland General Hospital, 2006 WL 126615 at *3 (E.D. Mich. Jan. 17, 2006)
(emphasis added).
24

believe she worked for Sodecia,” it was in fact unreasonable for her not to believe
she also worked for Aerotek. Indeed, as Bond has conceded, she knew that
Aerotek was her employer. (SOF at ¶¶6, 10.)

Her knowledge of Aerotek is

unsurprising given that she contacted an Aerotek recruiter when she was seeking
employment (SOF at ¶¶6-7), she completed Aerotek pre-employment paperwork
that expressly stated that she would be employed by Aerotek (id. at ¶¶8-11), she
kept in contact with her Aerotek recruiter Ryan Stamper while working at Sodecia
(id. at ¶31-32), and, as her counsel acknowledged during oral argument, she
received her paychecks from Aerotek. Bond, therefore, knew of Aeotek’s role and
could have (and should have) named Aerotek in the Charge.
Bond also fails to show that Aerotek and Sodecia’s interests are “so similar
… [that] it would be unnecessary to include [Aerotek] in the EEOC proceedings,”
Romain, 836 F.2d at 245. There simply is no evidence in the record linking the
two companies beyond the limited Services Agreement. Bond has presented no
evidence that Aerotek and Sodecia are anything other than “separate institutions
having separate interests. [Thus, while] they have a contract with each other,
[Sodecia’s] interests are not so similar to [Aerotek’s] that [Aerotek] would be
adequately represented by [Sodecia] in an EEOC proceedings where [Bond] had
potential claims against both [companies].” Weatherspoon, 2006 WL 126615 at *4
(granting motion to dismiss due to plaintiff’s failure to name defendant in EEOC
25

charge).
Bond has also failed to present any evidence that Aeortek did not suffer
prejudice – the test’s third factor – when it was unable to participate in the EEOC
proceedings and attempt to avoid the “expense and inconvenience of litigation.”
Romain, 836 F.2d at 245.
Finally, as to the test’s fourth component, Aerotek never represented to
Bond that its relationship with her was to be through Sodecia.

Instead, Aerotek

made clear again and again that it employed Bond directly. (See, e.g., Aerotek
Employment Documents at ECF #33-6, #33-7, and #33-8.)
The facts of this action resemble other cases in which courts have
determined that staffing companies (like Aerotek) do not have an “identity of
interest” with their clients (like Sodecia). See, e.g., Pesik v. Colorado State Univ.,
2003 WL 716551 at *2-*3 (10th Cir. Mar. 3, 2003) (finding that staffing company
and client “plainly … are not related in any way” and affirming dismissal of
complaint for failure to name staffing company in EEOC charge); Ganthier v.
North Shore-Long island Jewish Health System, 298 F.Supp.2d 342, 347 (same).
The Court finds these authorities persuasive and follows them. Because Bond
failed to establish that Aerotek and Sodecia share an “identity of interest,” her
failure to name Aerotek in the Charge precludes her from asserting her Title VII
claim against Aerotek.
26

3.

Aerotek is Entitled to Summary Judgment on Bond’s Title VII
and ELCRA Claims Because Aerotek Did Not Discriminate
Against Her

Bond’s discovery responses are fatal to her discrimination claims against
Aerotek. When asked in interrogatories to “identify … each person at Sodecia
and/or Aerotek who you believe discriminated against you and/or treated you
differently on the basis of your race,” Bond did not identity a single Aerotek
employee who discriminated against her. (Bond’s Interrogatory Responses, ECF
#33-12 at 4, Pg. ID 379.) Since nobody at Aerotek discriminated against Bond,
Aerotek cannot possibly be liable to Bond under Title VII or the ELCRA.4
Bond may be arguing that Aerotek is liable for Sodecia’s alleged
employment discrimination, but that claim, too, would fail as a matter of law. As
explained above, Bond had failed to present a prima facie case that Sodecia
violated Title VII or the ELCRA, so any derivative claim against Aerotek based
upon alleged discrimination by Sodecia must fail. Moreover, as Aerotek correctly
notes, Bond has failed to present any evidence that Aerotek had any control over
Bond’s working environment at Sodecia.

Bond counters that (1) Aerotek’s

handbook “encourages employees to bring questions or concerns [about their

4

As noted above in Section (B)(3) above, Aerotek is entitled to summary judgment
on Bond’s Title VII claim because Bond did not name Aerotek in the Charge.
Even if Bond had named Aerotek in the Charge, Aerotek would still be entitled to
summary judgment because Bond has no evidence that Aerotek discriminated
against her.
27

working conditions] to an Aerotek employee,” and (2) “[t]he record is replete with
[Bond] contacting Aerotek employee Ryan Stamper to try to resolve the various
issues,” (Bond’s Br., ECF #36 at 26-27, Pg ID. 486), but these observations do not
advance her discrimination claims against Aerotek. The record establishes that
when Bond contacted Aerotek to raise issues with how Kalil or others at Sodecia
treated her, Aerotek took action to address her concerns. For example, when Bond
told Stamper about Kalil’s “monkey” comment, “Aerotek [] notified Sodecia that
[Bond] had raised a concern about the comment,” and Sodecia subsequently
“counseled” Kalil about his comments. (SOF at ¶¶32-33.) Far from discriminating
against Bond, Aerotek tried to improve her working conditions at Sodecia and then
tried to find her another position after she left Sodecia. (SOF at ¶63.) Bond simply
has no basis to assert a discrimination claim against Aerotek.
The facts of this case closely parallel those in Haddad v. Adeco, USA, 2005
WL 3556060 (W.D. Mich. Dec. 29, 2005), in which the court dismissed a similar
discrimination claim against a staffing agency. In Haddad, an employee brought a
discrimination claim against both a temporary employment agency (Adeco) and
the organization at which Adeco had placed her (the American Cancer Society (the
“ACS”)). After the ACS fired the employee, she filed suit. The court granted
summary judgment against the employee. The court stressed that “[t]he record
shows that Adeco never took adverse action against Plaintiff on any basis. While
28

Adeco did accept ACS's decisions about Plaintiff's terminated placement and the
failure to promote her to a higher placement, Adeco had no choice in the matter
because it was merely supplying workers to ACS and ACS controlled its own
workplace.” Id. at *3, n.2. The same analysis applies with equal force here.
Sodecia, not Aerotek, controlled the relevant workplace (see SOF at ¶3, quoting
the Services Agreement at § 2.2, Pg. ID 292), and Bond has presented no evidence
to show otherwise. Bond has failed to show that Aerotek or any of its employees
took any adverse employment action against her, and her ELCRA claim against
Aerotek therefore fails.
CONCLUSION
For all of the reasons stated in this Opinion and Order, IT IS HEREBY
ORDERED that Sodecia and Aerotek’s motions for summary judgment (ECF #33
and #34) are GRANTED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: June 24, 2014
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on June 24, 2014, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]
29