Thomas v. Pinnacle Foods Group LLC
Filing
25
OPINION AND ORDER granting 18 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARCY E. THOMAS,
Plaintiff,
Case No. 2:13-cv-10103
v.
Honorable Patrick J. Duggan
PINNACLE FOODS GROUPS LLC,
Defendant.
__________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
In this action, Plaintiff Darcy Thomas is suing her former employer,
Defendant Pinnacle Foods Group, LLC, alleging that she was discharged in
retaliation for engaging in protected activity under the Michigan Whistleblower’s
Protection Act (the “WPA”), Michigan Compiled Laws § 15.362. This matter is
presently before the Court on Defendant’s Motion for Summary Judgment filed
pursuant to Federal Rule of Civil Procedure 56. Plaintiff has responded to
Defendant’s Motion and Defendant has replied. The Court has reviewed and
considered the parties’ briefs and supporting evidence, and has had the benefit of
hearing the arguments of counsel at the September 19, 2013 motion hearing. For
the reasons set forth herein, the Court grants Defendant’s Motion for Summary
Judgment. The Court also denies Plaintiff’s request to amend, which Plaintiff
sought at the motion hearing.
I.
Factual and Procedural Background
Defendant Pinnacle produces Vlasic pickles and similar food products at its
facility in Imlay City, Michigan. The production of these foodstuffs, like much
else in the American economy, occurs in a sequential fashion and Pinnacle utilizes
an assembly line to separate each task along the way. Plaintiff began working at
Pinnacle as a seasonal employee in April 2011. (Pl.’s Dep., Def.’s Mot. Ex. 2 at
23:20-25; id. at 59:10-11.) During her first season at Pinnacle, Plaintiff operated a
waterjet machine. (Id. at 36:5-7.) During her second stint, Plaintiff worked as a
labeler operator. (Id. at 79.) While employed by Pinnacle, Plaintiff was a member
of the United Dairy and Bakery Workers Union, Local 87. (Id. at 52:1-8.) As a
member of that union, Plaintiff was entitled to file grievances and discuss any
safety concerns with Union Steward Dave Hensley. (Id. at 52:13.)
Sometime toward the end of July 2012 or in the beginning of August 2012 –
during Plaintiff’s first week of training on the labeler device – Plaintiff was
shocked while cleaning the machine. (Id. at 141.) Despite feeling comfortable
going to human resources to discuss work-related issues, Plaintiff did not report the
incident to anyone in that department. (Id. at 77, 158.) Plaintiff did, however,
relay what occurred to several individuals at work in effort to have any safety
2
problem corrected. Specifically, Plaintiff told Heather (her trainer), Shaniqua
(another labeler), Trevor Montroy (a supervisor), Patrick Armstrong (her crew
leader),1 Andrew Kinch (a “lead guy”), Steve Trowhill (a maintenance man),2 the
third shift electrician, Colleen Davlin (the Manager of Safety and Health),3 Dave
Hensley (her Union Steward),4 and she may have told her direct supervisor Dave
Boughan but could not recall with specificity.5 (Id. at 151-56.) According to
Plaintiff, Mr. Hensley indicated that there was nothing the union could do but
advised Plaintiff to contact someone at the Occupational Safety and Health
Administration (“OSHA”). (Id. at 178:3-6.)
1
Mr. Armstong testified during his deposition that Plaintiff never came to
him to report being shocked by the labeler but that he did hear other employees
discussing the incident in the days that followed. (Armstrong Dep., Def.’s Ex. 20
at 68-70.)
2
Mr. Trowhill testified that he had no recollection of Plaintiff telling him
that she was shocked on the labeler but did state that she may have discussed other
maintenance concerns with him. (Trowhill Dep., Def.’s Mot. Ex. 19 at 17:1718:9.)
3
At her deposition, Ms. Davlin testified that Plaintiff never approached her
about being shocked by the labeler device. (Davlin Dep., Def.’s Mot. Ex. 6 at
60:11-16.)
4
Mr. Hensley testified during his deposition that he had no recollection of
Plaintiff coming to him about a safety concern involving the labeler device.
(Hensley Dep., Def.’s Mot. Ex. 18 at 50:16-20.)
5
Mr. Boughan testified that Plaintiff never told him about being shocked
and that he never heard about the incident. (Boughan Dep., Def.’s Mot. Ex. 5 at
91-92.)
3
After complaining of the shocking incident internally, Plaintiff began to
experience increased scrutiny at work. (Pl.’s Resp. 1-3; see also Pl. Dep., Def.’s
Mot. Ex. 2 at 94:5-8 (“I think ever since I got [shocked] on the labeler that I had all
these problems with these people, bottom line. To be 100 percent honest with you
I think that’s what the problem was.”).) For example, on August 17, 2012, while
Plaintiff was attending safety training, a supervisor came to her and instructed her
to return to work. (Pl.’s Resp. at 2.) Because the training was mandatory, Plaintiff
could not return as asked; however, when she did return to her machine, her
supervisor Mr. Boughan was operating it. (Id.) Another incident occurred on
August 23, 2012, when Mr. Boughan wrote Plaintiff up for running the labeler at
an inappropriately high speed. (Incident Report, Def.’s Mot. Ex. 9.) Plaintiff
contested her responsibility for increasing the machine’s speed and indicated that
Mr. Armstrong, who was running the machine while she was taking a break, must
have been responsible. (Id.)
The increased scrutiny became so problematic that on August 27, 2012,
Plaintiff filed a harassment claim with human resources against Mr. Boughan.
(Thomas Statement, Def.’s Mot. Ex. 13.) Plaintiff did not, however, mention any
connection between Mr. Boughan’s allegedly harassing conduct and the shocking
incident. In fact, Plaintiff testified that she was “not sure” what motivated Mr.
Boughan to harass her. (Pl. Dep., Def.’s Mot. Ex. 2 at 93:17-19.)
4
Having failed to convince anyone at Pinnacle to address the problem with
the labeler device, Plaintiff called the Michigan Occupational Safety and Health
Administration (“MIOSHA”) in the “[l]ater part of August” to report a safety
problem, namely that she had been shocked on a machine at work. (Id. at 170:1011.) After Plaintiff described what happened over the telephone, the MIOSHA
representative indicated that “she would send [Plaintiff] the paperwork.” (Id. at
172:22.) Plaintiff filled out and signed the paperwork and sent it back to MIOSHA
on September 18, 2012, the same day that she was ultimately terminated. (Pl.’s Br.
14.) MIOSHA visited Defendant’s facility on September 28, 2012 and after
inspecting the premises, the MIOSHA representative was unable to substantiate
any hazards and Defendant received no citations. (MIOSHA Report, Def.’s Mot.
Ex. 14.)
According to Defendant, Plaintiff’s September 18, 2012 termination had
nothing to do with Plaintiff’s purported safety concerns. Rather, the termination
was the result of events transpiring on September 14, 2012 and the company’s
policies addressing those events. Plaintiff’s line was scheduled to work until 1:00
a.m. on September 14, 2012. Although Plaintiff vigorously disputes that a notice
of overtime was posted, Defendant claims Plaintiff’s line was scheduled for
overtime and that a notice reflecting this scheduling change was posted in the
facility cafeteria. (DeWitte Aff., Def.’s Mot. Ex. 17 at ¶ 6.) Unaware that she was
5
supposed to work overtime, Plaintiff left work shortly after her regularly-scheduled
shift and did not work overtime that evening. As a result, Shift Manager Eric Rapp
reported Plaintiff for “walking off the job.” (Id. at ¶ 4.)
Human Resources Representative Dawn Dewitt conducted an investigation
of Mr. Rapp’s report and ultimately determined that Plaintiff violated Employee
Handbook Rule 10A by leaving work without a manger’s permission. (Id. at ¶ 10.)
In accordance with the Employee Handbook, Plaintiff received a ten-day
suspension, accumulating one demerit for each day. (Employee Handbook, Def.’s
Mot. Ex. 1.) Having exceeded the six demerit limit that seasonal employees are
permitted to receive, (id.), Defendant terminated Plaintiff on September 18, 2012.
The individuals employed in Pinnacle’s human resources department who
either investigated Mr. Rapp’s report or recommended and approved Plaintiff’s
termination once that investigation was complete, denied having any knowledge
that Plaintiff was shocked while cleaning her labeler device or that Plaintiff had
concerns about the safety of Pinnacle’s facility or machinery. (Struder Dep.,
Def.’s Mot. Ex. 4; Struder Aff., Def.’s Mot. Ex. 15; Hudson Aff., Def.’s Mot. Ex.
16; DeWitte Aff., Def.’s Mot. Ex. 17.)
In December 2012, Plaintiff initiated this action in the Circuit Court for the
County of Genessee.6 Defendant timely removed the action to this Court on the
6
Case No. 12-99533-CZ.
6
basis of diversity jurisdiction on January 11, 2013. 28 U.S.C. §§ 1332, 1441,
1446. Upon the completion of discovery, Defendant filed a motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56 seeking dismissal of
Plaintiff’s sole cause of action arising under the WPA.
II.
Standard of Review
Federal Rule of Civil Procedure 56 instructs courts to “grant summary
judgment 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) (2012). A court assessing the appropriateness of summary judgment asks
“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.”
Amway Distribs. Benefits Ass'n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.
2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct.
2505, 2512 (1986)).
The initial burden of proving the absence of a genuine dispute rests with the
movant, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986), who
“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)(A)-(B). While this
7
inquiry requires the Court to construe factual disputes, and the inferences there
from, in the light most favorable to the non-moving party, only disputes over facts
that might affect the outcome of the suit preclude the entry of summary judgment.
Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson, 477 U.S. at 248, 106 S. Ct.
at 2510.
If the moving party discharges their initial burden using the materials
specified in Federal Rule of Civil Procedure 56(c), the burden of defeating
summary judgment shifts to the non-movant who must point to specific material
facts – beyond the pleadings or mere allegation – which give rise to a genuine issue
of law for trial. Anderson, 477 U.S. at 256, 106 S. Ct. at 2514. A mere scintilla of
evidence supporting the non-movant’s claim will not prevent summary judgment;
rather, there must be evidence on which a jury could reasonably find for the nonmovant. Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011).
Moreover, if, “after adequate time for discovery and upon motion,” the nonmovant “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case[] and on which that party will bear the burden of proof
at trial[,]” a court should enter summary judgment in favor of the moving party.
Celotex, 477 U.S. at 322, 106 S. Ct. at 2552. When this occurs, “there can be ‘no
genuine issue as to any material fact,’ since a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other
8
facts immaterial.” Id. at 323, 106 S. Ct. at 2552. Thus, if the non-movant does not
support the elements of a claim or defense, the moving party is “entitled to
judgment as a matter of law.”
III.
Analysis
Plaintiff contends that Defendant discharged her in violation of the WPA,
which provides:
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the
employee's compensation, terms, conditions, location, or
privileges of employment because the employee, or a
person acting on behalf of the employee, reports or is
about to report, verbally or in writing, a violation or a
suspected violation of a law or regulation or rule
promulgated pursuant to law of this state, a political
subdivision of this state, or the United States to a public
body, unless the employee knows that the report is false,
or because an employee is requested by a public body to
participate in an investigation, hearing, or inquiry held by
that public body, or a court action.
Mich. Comp. Laws § 15.362.
Being “analogous to antiretaliation provisions of other employment
discrimination statutes,” claims brought under the WPA “should receive treatment
under the standards of proof of those analogous statutes.” Shallal v. Catholic Soc.
Servs., 455 Mich. 604, 617, 566 N.W.2d 571, 577 (1997) (overruled in part on
other grounds). Accordingly, in analyzing actions brought pursuant to the WPA
where, as here, a plaintiff relies on circumstantial evidence, Michigan courts have
9
adopted the McDonnell Douglas burden shifting framework employed in Title VII
and Michigan Civil Rights Act cases. See, e.g., Debano-Griffin v. Lake Cnty. Bd.
of Comm’rs, 493 Mich. 175-76, 828 N.W.2d 634, 638 (2013). This evidentiary
framework requires a plaintiff to make a prima facie showing that her termination
was retaliatory in order to survive summary judgment. Id. at 176, 828 N.W.2d at
638. If a plaintiff discharges this initial burden, the burden of production shifts to
the defendant to articulate a legitimate, nonretaliatory explanation for terminating
the plaintiff’s employment. Id. at 176, 828 N.W.2d at 639. To withstand
summary judgment, the plaintiff must then present sufficient evidence showing
that the defendant’s articulated reason for the termination was not the real reason
but that the reason offered was merely a pretext for unlawful retaliation. Id.
A.
Plaintiff Has Not Established a Prima Facie Case of Unlawful
Retaliation Because Plaintiff Has Not Demonstrated Causation
To establish a prima facie case pursuant to the WPA, a plaintiff must present
evidence that (1) the plaintiff engaged in protected activity as defined by the Act,
(2) the defendant took an adverse action against the plaintiff, and (3) “a causal
connection exists between the protected activity” and the adverse employment
action. Id. at 175, 828 N.W.2d at 638 (quotation omitted). The WPA defines
“protected activity” as consisting of the following: (1) reporting to a public body a
violation of a law, regulation, or rule; (2) being about to report such a violation to a
10
public body; or (3) being asked by a public body to participate in an investigation.
Mich. Comp. Laws § 15.362.
Defendant believes that summary judgment is appropriate as a matter of law
because Plaintiff has failed to adduce facts in support of a prima facie case.
Defendant argues that “[a]ssuming arguendo that Plaintiff engaged in protected
activity, Plaintiff cannot establish a causal connection between any alleged
protected activity and her termination because it is undisputed that no decision
maker had any knowledge of her complaint to MIOSHA prior to her termination.”
(Def.’s Br. 10 (emphasis removed).) Plaintiff responds to this argument by
suggesting causation may be inferred due to the increased scrutiny Plaintiff faced
at work after being shocked by the labeler machine as well as the close temporal
proximity between her protected activity and the adverse employment action.
(Pl.’s Br. 12-13.)
To establish a causal connection between the protected activity and the
termination (the adverse employment action), Plaintiff must present evidence that
Defendant had “objective notice” of her protected activity. Richards v. Sandusky
Cmty. Schs., 102 F. Supp. 2d 753, 763(E.D. Mich. 2000) (citing Roberson v.
Occupational Health Ctrs. Of Am., Inc., 220 Mich. App. 322, 326, 559 N.W.2d 86,
88 (1996) (“‘An employer is entitled to objective notice of a report or threat to
report by the whistleblower.’” (quoting Kaufman & Payton, P.C. v. Nikkila, 200
11
Mich. App. 250, 257, 503 N.W.2d 728, 732 (1993))). Courts have interpreted
objective notice “to mean that the person who fired the employee was aware of the
protected activity in which the employee engaged.” Saloka v. Shelby Nursing Ctr.
Joint Venture, Nos. 255954, 257200, 2005 Mich. App. LEXIS 3033, at *12 (Mich.
Ct. App. Dec. 6, 2005) (unpublished) (per curiam) (citation omitted).
Accordingly, Plaintiff must point to evidence creating a disputed issue of material
fact with respect to whether the individuals involved in Plaintiff’s termination
decision possessed “objective notice” of her protected activity. This Plaintiff
cannot do.
During her deposition, Plaintiff testified that she told several people at
Pinnacle about the incident where she received a shock from the labeler device,
(Pl. Dep., Def.’s Mot. Ex. 2 at 148:23-149:4), including some individuals
employed in a management capacity, (id. at 152:3-5, 152:17-19). Those with some
sort of management function include Trevor Montroy, a crew leader, Andrew
Kinch, “a lead guy,” and Colleen Davlin, Defendant’s safety manager. (Id. at
152:7-8, 152:20-22, 154:14-15.) Plaintiff may have told her supervisor Dave
Boughan, but could not recall whether or not she actually did. (Id. at 153:20-25.)
At his deposition, Mr. Boughan testified that he had no recollection of Plaintiff
coming to him about a safety concern involving the labeler device. (Hensley Dep.,
Def.’s Mot. Ex. 18 at 50:16-20.) Moreover, Ms. Davlin did not corroborate
12
Plaintiff’s testimony but rather testified at her deposition that Plaintiff never
mentioned receiving a shock from the labeler. (Davlin Dep., Def.’s Mot. Ex. 6 at
60:11-16.)
While contradictory, the above-described testimony does not give rise to a
genuine dispute of material fact. While, viewing the evidence in the light most
favorable to Plaintiff, some non-managerial Pinnacle employees may have been
aware that Plaintiff was shocked by the labeler device, evidence that “nonmanagerial, non-decision-making employees” knew of the incident “does not
create a reasonable inference that any managerial level, decision-making employee
knew [Plaintiff] had filed[, or intended to file] a complaint with MIOSHA.”
Carruthers v. Isringhausen, Inc., No. 296250, 2011 Mich. App. LEXIS 929, at *8
n.2 (Mich. Ct. App. May 19, 2011) (unpublished). Assuming that some of the
aforementioned individuals possessed management authority, it is undisputed that
none of these individuals were involved in the decision to terminate Plaintiff.
Pethers v. Metro Lift-Propane, No. 09-10516, 2010 U.S. Dist. LEXIS 76776, at
*25 (E.D. Mich. July 29, 2010) (unpublished) (explaining that evidence that
plaintiff, a former driver, discussed the possibility of filing of a complaint with his
fellow drivers did not provide employer with objective notice of plaintiff’s intent
to file a complaint even where one participant in the discussions held the title of
“lead driver” and had some management responsibilities).
13
Further eroding Plaintiff’s argument that Defendant violated the WPA is the
fact that complaining to fellow employees or even to management does not amount
to protected activity; rather, to be protected by the Act, a whistleblower must report
a violation or be about to report a violation to a “public body[.]” Mich. Comp.
Laws § 15.362. While complaints to fellow employees may be a precursor to a
report to a public body, an employer’s subjective fear that an employee has
reported or intends to report a violation “will not substitute for some form of notice
of threatened action.”7 Kaufman & Payton, P.C., 200 Mich. App. at 257, 503
N.W.2d at 732.
Bolstering Defendant’s position that nobody involved in Plaintiff’s
termination had “objective notice” of Plaintiff’s protected activity is Plaintiff’s
testimony that the only person she spoke to about the possibility of filing a
complaint with either OSHA or MIOSHA was Mr. Hensley, her Union Steward.
(Pl. Dep., Def.’s Mot. Ex. 2 at 202:11-18; see also id. at 169:15-21 (Plaintiff
testifying that she never raised the issue of reporting the safety problem with
anybody in management or anybody in a supervisory role).) According to
Plaintiff, she went to Mr. Hensley to tell him about being shocked on the labeler
7
For this reason, the Court finds that Plaintiff’s allegations regarding being
subjected to increased scrutiny at work after being shocked lend little credence to
her retaliatory discharge claim. (Pl.’s Resp. 14 (“…Plaintiff’s supervisors also
intensified their scrutiny of her work after she complained about the safety
concerns.”).)
14
device and he told her that she should contact somebody at OSHA. (Id. at 155:814.) Plaintiff never told “anybody at the plant at all that [she] had called
MIOSHA[,]” and she never told “anybody at the plant that [she] submitted
paperwork to MIOSHA[.]” (Id. at 176:7-12.) Despite this testimony, Plaintiff asks
this Court to infer a causal connection between her protected activity and her
termination on the basis that Mr. Hensley “knew that she was going to call
MIOSHA[] because he is the one that told her to do it.” (Pl.’s Resp. 14.) This the
Court will not do.
As an initial matter, the fact that Mr. Hensley purportedly8 told Plaintiff to
report the shocking incident to MIOSHA is of no avail. The WPA prohibits
employers from taking adverse actions against employees on the basis of an
employee’s protected conduct. Mich. Comp. Laws § 15.362. The National Labor
Relations Act expressly excludes the possibility that a union representative is an
agent of the employer. 29 U.S.C. § 152(2) (defining employer and excluding “any
labor organization . . . or anyone acting in the capacity of officer or agent of such
labor organization[]” from the definition). Accordingly, the fact that Mr. Hensley
8
The Court uses the term “purportedly” because Dave Hensley testified at
his deposition that he had no recollection of Plaintiff ever talking to him about a
safety concern with regard to the labeler device. (Hensley Dep., Def.’s Mot. Ex.
18 at 50:16-20.) A necessary corollary of this testimony, one would assume, is that
Mr. Hensley does not recall telling Plaintiff to report her concern to MIOSHA.
15
“knew” that Plaintiff was going to call MIOSHA does not impute such knowledge
to Defendant.9
Of greater consequence, Plaintiff’s conclusion that Mr. Hensley must have
reported the shocking incident to Pinnacle management or human resources lacks
evidentiary support. Plaintiff asks this Court to infer that someone with decisionmaking authority had knowledge of Plaintiff’s safety concerns because Mr.
Hensley advised Plaintiff to report the shocking incident to a public authority.
(Pl.’s Resp. 7.) This inference is warranted, according to Plaintiff, because
“Defendant held both weekly and monthly meetings to discuss the issues of its
employees[;]” “[t]he monthly meetings were between management and the union
[and t]he weekly meetings were between the union and HR[.]” (Id.) As such, Mr.
Hensley must have mentioned that Plaintiff was shocked on the labeler device
because he testified at his deposition that he always reports the safety concerns of
union members to management if and when they arise. Plaintiff seems to
acknowledge that this argument is hypothetical as she admitted during her
deposition that she had no knowledge of Mr. Hensley relaying any such
information to anybody at Pinnacle; irrespective of the paucity of evidence,
however, Plaintiff indicated that such a situation remains “a possibility[.]” (Pl.
9
The Court points out that even if Mr. Hensley did tell Plaintiff to call
MIOSHA, this does not mean that he “knew” Plaintiff would follow his advice.
Plaintiff testified that she never told Mr. Hensley that she called MIOSHA. (Pl.
Dep., Def.’s Mot. Ex. 2 at 176:5-6.)
16
Dep., Def.’s Mot. Ex. 2 at 178:3-11.) Speculation and conjecture do not suffice at
the summary judgment stage.
Although Plaintiff’s counsel implored this Court to construe Mr. Hensley’s
statement that he always reports safety concerns to management as circumstantial
evidence that he did actually report Plaintiff’s concerns to management, to
establish causation using circumstantial evidence, the “circumstantial proof must
facilitate reasonable inferences of causation, not mere speculation.” Skinner v.
Square D Co., 445 Mich. 153, 164, 516 N.W.2d 475, 480 (1994). Plaintiff’s
unconfirmed suspicions about Mr. Hensley communicating his conversation with
Plaintiff to management or human resources are all the more baffling in light of
Defendant’s evidence – consisting of sworn deposition testimony and sworn
affidavits – showing that nobody involved in the termination decision had
knowledge that Plaintiff was shocked or that she was going to report the incident to
a public authority. (Struder Dep., Def.’s Mot. Ex. 4 at 85:3-12; Davlin Dep.,
Def.’s Mot. Ex. 6 at 60:9-61:9; Struder Aff., Def.’s Mot. Ex. 15 at ¶¶ 8-11
(affidavit of Human Resources Supervisor); Hudson Aff., Def.’s Mot. Ex. 16 at ¶¶
8-11 (affidavit of Manager of Human Resources); DeWitte Aff., Def.’s Mot. Ex.
17 at ¶¶ 11-15(affidavit of Human Resources Representative)). The Court rejects
Plaintiff’s proposed inference as not only is the inference “not deducible from” the
facts, but it is not even “an explanation consistent with known facts or
17
conditions[.]” Shaw v. City of Ecorse, 283 Mich. App. 1, 15, 770 N.W.2d 31, 40
(2009) (quoting Skinner, 445 Mich. at 164, 51 N.W.2d at 480).
Plaintiff has failed to produce evidence creating a genuine issue of material
fact with respect to whether Defendant had “objective notice” that she had
contacted a public body regarding her safety concerns, or that she was allegedly
about to file a report. As such, Plaintiff has not established a causal connection
between her protected activity and her termination and has therefore failed to
adduce sufficient evidence demonstrating a prima facie case under the WPA.
B.
Plaintiff Has Not Demonstrated that Defendant’s Stated Reason for the
Adverse Employment Action was Pretextual
Assuming that Plaintiff made out a prima facie WPA claim, Defendant
articulated a legitimate non-retaliatory reason for Plaintiff’s discharge, namely, that
Plaintiff violated Rule 10A10 by “walking off the job,” received a ten-day
suspension, accumulated ten demerits (one for each day of suspension), and was
terminated because seasonal employees such as Plaintiff are permitted a maximum
of six demerits before they are discharged. (Def.’s Br. 7-8.) Because ten demerits
clearly exceeded the six permitted by Defendant’s company policy, Plaintiff was
terminated. A human resources representative conducted an investigation and
10
Rule 10A provides: “Any employee who leaves Company property, other
than at lunch time and quitting time, without his/her supervisors [sic] permission is
considered as having WALKED OFF THE JOB.” (Employee Handbook, Def.’s
Mot. Ex. 1.) A first-time infraction of this rule will give rise to a written warning
carrying a suspension of two to ten days. (Id.)
18
determined that Plaintiff walked off the job when she left work at the end of her
regularly-scheduled shift on September 14, 2012, despite the fact that notice had
been posted that Plaintiff’s line was scheduled for overtime.11 (DeWitte Aff.,
Def.’s Mot. Ex. 17 at ¶¶ 4-10.) Thus, to defeat summary judgment, Plaintiff must
demonstrate, by a preponderance of the evidence, that Defendant’s articulated
reason for terminating Plaintiff was merely a pretext for retaliation. Hopkins v.
City of Midland, 158 Mich. App. 361, 379, 404 N.W.2d 744, 752 (1987). To do
so, Plaintiff must demonstrate that the evidence in this case is sufficient to permit a
reasonable trier of fact to conclude that Plaintiff’s protected activity was a
motivating factor in the adverse action taken by Defendant. Jennings v. Cnty. of
Washtenaw, 475 F. Supp. 2d 692, 714 (E.D. Mich. 2007).
In support of her claim that the legitimate nonretaliatory reason for her
discharge is a mere pretext for unlawful retaliation, Plaintiff argues that she did not
violate Rule 10A. Plaintiff argues that “she looked to see if she was scheduled for
overtime . . . but nothing was posted for her.” (Pl.’s Br. 17 (citing deposition
testimony).) In essence, Plaintiff argues that she did not violate the rule because
she did not need permission to leave at the end of her shift. But Plaintiff’s
argument does not end there. She points to the fact that when her regularlyscheduled shift came to an end, she looked for her crew leader, who would
11
Plaintiff never contested the termination by filing a grievance with her
union. (Pl.’s Dep., Def.’s Mot. Ex. 2 at 127.)
19
normally replace her on the line. (Id.) When she could not find him, she found a
“fill-in Crew Leader,” who told her that she could leave. (Id.) Thus, even if she
was scheduled for overtime, Plaintiff suggests that she had a supervisor’s
permission to leave work. These arguments miss the mark because in order to
show pretext, Plaintiff must do more than establish that Defendant mistakenly
believed that she had violated company policy. Rather, Plaintiff must show that
those involved in the termination decision did not actually believe the human
resources investigation finding that Plaintiff violated Rule 10A. Stated differently,
a “plaintiff cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is wise, shrewd, prudent, or
competent.” Town v. Mich. Bell Tel. Co., 455 Mich. 688, 704, 568 N.W.2d 64, 72
(1997) (quotation omitted).
Plaintiff has not pointed to any record evidence suggesting that retaliatory
animus motivated the discharge decision. As such, summary judgment is
appropriate as a matter of law.
C.
Plaintiff Is Not Entitled to Amend Her Complaint
At the September 19, 2013 motion hearing, Plaintiff’s counsel indicated that
if the Court granted Defendant’s Motion for Summary Judgment, Plaintiff should
have an opportunity to amend the underlying complaint to include a count of
20
retaliatory discharge in violation of public policy. Plaintiff believes such an
amendment would be proper if the Court believes that Plaintiff’s complaints to
management prompted her termination.
1.
Applicable Law
Pursuant to Federal Rule of Civil Procedure 15(a), leave to amend is “freely”
granted “when justice so requires.” See Fed. R. Civ. P. 15(a)(2). The Supreme
Court of the United States has advised that a plaintiff should be allowed the
opportunity to test a claim on the merits if the facts and circumstances underlying
the claim suggest that it may be a proper subject of relief. Foman v. Davis, 371
U.S. 178, 182, 83 S. Ct. 227, 230 (1962). However, the Court further instructed
that a motion to amend a complaint should be denied if the amendment is brought
in bad faith or for dilatory purposes, results in undue delay or prejudice to the
opposing party, or would be futile. Id.
An amendment is futile when the proposed amendment fails to state a claim
upon which relief can be granted and thus is subject to dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(6). Rose v. Hartford Underwriters Ins. Co.,
203 F.3d 417, 420 (6th Cir. 2000). Prejudice may result from delay, but “[d]elay
by itself is not sufficient reason to deny a motion to amend. Notice and substantial
prejudice to the opposing party are critical factors in determining whether an
amendment should be granted.” Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir.
21
1994) (citations omitted). A court also should consider whether the amendment
will require the opposing party “to expend significant additional resources to
conduct discovery and prepare for trial” or whether it will “significantly delay the
resolution of the dispute,” as either effect constitutes prejudice. Phelps v.
McClellan, 30 F.3d 658, 663 (6th Cir. 1994).
2.
Application
Plaintiff contends that Defendant would not be prejudiced by the amendment
because discovery has finished and no additional depositions are necessary. The
Court, however, does not agree. While Plaintiff’s proposed amendment may
survive a Rule 12(b)(6) motion and is therefore not futile as defined in Rose, supra,
Plaintiff has not pointed to any record evidence showing that any of the three
individuals involved in the decision to terminate Plaintiff had knowledge of her
workplace injury or her concerns about the labeler device. As such, it is
reasonable to infer that additional discovery would be required if Plaintiff was to
prevail on the claim. Given that discovery has closed, Defendant would have to
expend significant additional resources to defend a claim that Plaintiff could have
included in the original complaint. Moreover, the addition of an entirely new
cause of action would delay the resolution of this action. The Court therefore finds
that Defendant would be unduly prejudiced if Plaintiff was granted an opportunity
to amend the Complaint.
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The Court also finds that undue delay in seeking the amendment renders the
belated request improper. Plaintiff does not explain why the proposed amendment
was not sought sooner nor suggest that she only became aware of the proposed
cause of action through the discovery process.
Plaintiff’s request to amend is therefore denied.
IV.
Conclusion and Order
For the reasons above, the Court concludes that Plaintiff has failed to
discharge her summary judgment burden of pointing to record evidence
establishing a prima facie case of retaliation. Alternatively, the Court finds that
Plaintiff has failed to establish the existence of disputed material facts with respect
to whether Defendant’s stated reason for terminating Plaintiff’s employment was a
mere pretext for retaliation. Lastly, the Court denies Plaintiff’s request to amend
the Complaint as the proposed amendment comes too late in these proceedings and
Defendant will suffer undue prejudice if Plaintiff’s request is granted.
Accordingly,
IT IS ORDERED that Defendant’s Motion for Summary Judgment is
GRANTED and the instant action is DISMISSED WITH PREJUDICE.
Date: September 25, 2013
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
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Copies to:
Brian M. Garner, Esq.
John F. Birmingham, Jr., Esq.
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