Davis v. Deleon et al

Filing 29

OPINION AND ORDER granting 16 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BENJAMIN R. DAVIS,
Plaintiff,
v.
Case No. 13-15056
CRAIG DELEON, LEGACY RIM, and
LEGACY DMC,

Hon. Patrick J. Duggan

Defendants.

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS AND FOR SUMMARY JUDGMENT
This is an employment discrimination case arising under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and Michigan’s
Elliott-Larsen Civil Rights Act (“ELCRA”), Michigan Compiled Laws § 37.2101,
et seq. Plaintiff Benjamin R. Davis worked as a rehabilitation trainer at the Brasza
Fitness Center at the Detroit Medical Center (“DMC”), which is located at the
Rehabilitation Institute of Michigan (“RIM”), from May 7, 2012 until his
termination on March 8, 2013. Plaintiff contends that Defendants Craig DeLeon,
Legacy RIM (a/k/a Rehabilitation Institute of Michigan), and Legacy DMC (a/k/a
Detroit Medical Center) discriminated against him on account of his gender and
because he formerly served in the United States military.

Plaintiff exhausted his administrative remedies by filing a charge of
discrimination with the Michigan Department of Civil Rights (“MDCR”) and filed
a timely complaint with this Court on December 12, 2013. Presently before the
Court is “Defendants’ Motion to Dismiss Based on the Pleadings and for Summary
Judgment,” filed pursuant to Federal Rules of Civil Procedure 12(c) and 56 on July
17, 2014.1 The matter has been fully briefed and the Court held a motion hearing
on October 1, 2014. For the reasons stated herein, the Court grants Defendants’
Motion.
I.
A.

BACKGROUND

Factual Background
On March 26, 2012, Defendant DeLeon, a male with managerial

responsibilities, interviewed Plaintiff, a male, for a rehabilitation trainer position at
the DMC Fitness Center located in Detroit, Michigan.2 This position opened as a
result of the resignation of Tiffany Grubaugh, a female trainer.
On April 9, 2012, DeLeon hired Plaintiff to replace Ms. Grubaugh.
Plaintiff’s employment became effective on May 7, 2012. Although initially hired
as a part-time employee, Plaintiff was later moved to a full-time position.
1

Typically, motions filed pursuant to Rule 12(c) are referred to as motions
for judgment on the pleadings.
2

Despite the use of “rehabilitation” in the job title, and the fact that the job
was affiliated with a large health system, a rehabilitation trainer is distinct from a
physical therapist.
2

(Interview Notes & Selected Applicant Form, Defs.’ Mot. Ex. 4; DeLeon Dep. Tr.
57, 135-36, Pl.’s Resp. Ex. 10; Pl. Dep. Tr. 67, Pl.’s Resp. Ex. 8.)
Plaintiff shadowed Ms. Grubaugh and another rehabilitation trainer for four
days prior to taking over Ms. Grubaugh’s clients. (Pl. Dep. Tr. 76-77.) A job
posting summary of the rehabilitation trainer position describes one of the job
duties as “provid[ing] appropriate assessment/documentation of patient
progress[.]” (Job Posting Summary, Defs.’ Mot. Ex. 7.3) Plaintiff testified that he
never saw Ms. Grubaugh fill out any paperwork while he shadowed her; however,
he did acknowledge that Ms. Grubaugh showed him “a lot of forms.” (Pl. Dep. Tr.
77.) These forms refer to workout summary forms, which, while different in
format, are all designed to aid in the documentation of client workouts and
progress. In an affidavit, Ms. Grubaugh states that she does not recall informing
Plaintiff that he was required to fill out any forms or that proper completion of the
forms was a duty of the position. (Grubaugh Aff. 2, Pl.’s Resp. Ex. 5.) While
Plaintiff makes much of the fact that he never received instruction regarding the
forms, during his deposition, Plaintiff affirmatively stated that proper
documentation of client progress was a requirement of the job. (Pl. Dep. Tr. 93.)

3

This document was created after Plaintiff was hired, as evidenced by a
creation date of October 16, 2012 on the bottom right corner of the document.
During his deposition, however, Plaintiff acknowledged that proper documentation
of client progress was, in fact, a job requirement. (Pl. Dep. Tr. 93.)
3

Defendants contend that DeLeon, Plaintiff’s direct supervisor, met with
Plaintiff in June 2012 regarding Plaintiff’s inadequate documentation of client
progress. During his deposition, Plaintiff testified that he could not recall whether
this meeting occurred. At some point during Plaintiff’s employment, Plaintiff and
DeLeon agreed that Plaintiff could use his iPad, a personal tablet, to organize
workouts for clients, but that he needed to also document progress using
department forms for the Fitness Center’s records.
With the exception of the June 2012 meeting, it appears that Plaintiff’s first
several months of employment proceeded smoothly, that is, until November 2012.
In November, Plaintiff made a statement to two front desk employees implying
that another co-worker, a female named Mary Thompson, had accused them of
stealing money. (Id. at 102-05.) This comment exacerbated tension that
previously existed between various Fitness Center staff members. (Id. at 107.) As
a result, a staff meeting was held and all employees involved in the incident were
required to participate in the Employee Assistance Program (“EAP”). (Id. at 112.)
Soon after the incident, Plaintiff sent DeLeon an email apologizing for “starting
this fire[.]” (Id. at 114; see also 11/6/12 Email, Defs.’ Mot. Ex. 9.)
Between the November incident and early January, DeLeon discovered other
performance issues related to Plaintiff. On January 7, 2013, DeLeon wrote
Plaintiff a “Letter of Disappointment.” (1/7/13 Letter, Defs.’ Mot. Ex. 10.) The
4

November 2012 incident described above was not referenced in the letter. The
letter – which was used to express disappointment with Plaintiff’s performance –
cited issues regarding Plaintiff’s failure to notify his colleagues when he left the
work area, about being late for appointments, and about referring a client to a
competitor.4 (Id.) The letter also states that DeLeon “reviewed a client file . . . in
response to a telephone call from the client’s wife. Upon review, it is evident that
you have not been keeping current with your progress notes for the above said
client.” (Id.) The letter concluded by reminding Plaintiff that his employment was
“expressly at-will” and that employees “may be terminated for continued failure to
meet the expectations of their positions, violations of policies and procedures, or
for any other reason or no reason at all.” (Id.) DeLeon met with Plaintiff about the
letter, which he read to Plaintiff and Plaintiff signed. (Pl. Dep. Tr. 125.) DeLeon
told Plaintiff that the letter “wasn’t a big deal. It wasn’t punishment.” (Id. at 129.)
After issuance of the Letter of Disappointment, additional issues regarding
Plaintiff’s performance arose. On March 4, 2013, approximately three months
after writing the Letter of Disappointment, DeLeon sent an email to RIM VicePresident Patti Jobbitt and Human Resources employee Regina Floyd setting forth

4

Much attention has been focused on whether Plaintiff knew he referred a
client to a competitor. Both sides agree that Plaintiff did not intentionally engage
in wrongdoing. Plaintiff does acknowledge, however, that the services his client
wanted were available through the Fitness Center, DMC, and/or RIM.
5

his belief that Plaintiff should be terminated from his position as a rehabilitation
trainer. The email provides:
Attached is a letter of disappointment that was issued on January 7th.
As you will see in the letter there were several issues that were
addressed, including improper/poor documentation of client files and
notes, leaving the work area without notice, and referring business to
outside competition.
Since the letter of disappointment I have found the employee to be
falsifying productivity and training members that either are not paying
for training, or extending their sessions beyond the allotted time
billed/paid for[.] There has [sic] also been ongoing issues related to
the employee’s adherence with documenting group exercise class
attendance. His solution, as you will see in additional documents
(email) was not to teach classes altogether if he could not do
department policy his way.
He was also scheduled to attend a training session on February 4th,
which he was notified for in our 1/15/13 staff meeting. He notified
me on February 1st that he had class that day and could not attend.
This training session was paid for by DMC ahead of training ($400)
and therefore went to waste.
Please let me know if there is any other information needed. I would
like to do the separation this Friday . . . .
(3/4/13 Email, Defs.’ Mot. Ex. 15.) The issues raised in this email are addressed
below.
In early March 2013, DeLeon learned that Plaintiff was regularly reporting
in a productivity log that he had spent more time with clients than he was supposed
to based on their scheduled appointment times. Plaintiff admits spending more
time with his clients than the scheduled appointment times would permit, but
6

asserts that his female counterparts did as well, and that their productivity logs
were never reviewed. (Pl.’s Resp. 3 (citing Szaroleta Aff.).)
With respect to the documentation of group exercise classes, toward the end
of February 2013, a co-worker sent Plaintiff an email asking him to write down the
size of his group exercise classes in a group productivity log located in “Studio 1.”
In response, Plaintiff indicated that his schedule was hectic around the group class
sessions and proposed making his own form to keep track of the number of people
attending his classes. Plaintiff also indicated that he was “more than ok [sic] not
teaching classes as well, if this compromise makes you feel like you are losing
your locus of control.” (2/20/13 Email, Defs.’ Mot. Ex. 13.) DeLeon, who had
been copied on all of the emails, responded that the log was required to accurately
report the numbers and that he was not interested in having multiple logs. (Id.)
DeLeon also indicated that teaching group exercise classes was not optional for
rehabilitation trainers. (Id.)
The last incident DeLeon documented in his email pertained to a smoking
cessation workshop that Plaintiff was scheduled to attend to learn various
techniques to assist his clients in quitting smoking. Plaintiff does not dispute that
he cancelled a few days before the workshop. (Pl. Dep. Tr. 156-61; see also Email
Exchanges, Defs.’ Mot. Ex. 12.) Plaintiff does, however, point to evidence that
Ms. Szaroleta once “no showed” at a similar event. (Szaroleta Aff. 4.)
7

Four days after DeLeon recommended Plaintiff’s termination, DeLeon
drafted a letter informing Plaintiff that “[s]ince receiving the letter of
disappointment you have failed to meet the required expectations of the job.”
(3/8/13 Letter, Defs.’ Mot. Ex. 16.) The letter then informs Plaintiff that his
employment will be terminated effective immediately. (Id.) At a meeting
discussing the contents of the termination letter, at which Ms. Floyd and Ms.
Jobbitt were present along with DeLeon and Plaintiff, Plaintiff raised concerns and
another meeting was scheduled for March 13, 2013.
Subsequent to the termination meeting, Ms. Floyd reviewed various client
files kept by Plaintiff and found the documentation in the files to be deficient. Ms.
Floyd also reviewed five files for each of the various female rehabilitation trainers
to see if they were adequately documenting client progress, and determined that
they were. (See generally Floyd Post-Termination Mem., Defs.’ Mot. Ex. 17;
Floyd Dep. Tr. 23-28, 37, 44, Pl.’s Resp. Ex. 12.)
To fill the vacancy created by Plaintiff’s termination, another white male
was hired. (DeLeon Dep. Tr. 57, 135.) The replacement was hired after
Defendants were apprised that Plaintiff had filed a charge of discrimination.
On March 26, 2013, Plaintiff filed a charge of discrimination with the
MDCR. (Charge of Discrimination, Defs.’ Mot. Ex. 18.) When a charge is filed
with the MDCR, the charge is automatically filed with the Equal Employment
8

Opportunity Commission (“EEOC”). The charge contains complaints of
discrimination on the basis of sex and disability. After a preliminary investigation
of Plaintiff’s claims, the EEOC mailed Plaintiff a letter of dismissal and notice of
rights on September 27, 2013, informing Plaintiff of his right to file a lawsuit
within ninety days of his receipt of the notice. (Right to Sue Letter, Defs.’ Mot.
Ex. 19.)
B.

Legal Proceedings
Plaintiff instituted the present action on December 12, 2013. Plaintiff’s

Complaint contains two counts: Count I: Title VII – Reverse Discrimination; and
Count II: Elliott-Larsen Violation. Despite containing only these two counts,
Plaintiff’s Complaint also makes several references to veteran status discrimination
and disability discrimination pursuant to the Americans with Disabilities Act
(“ADA”).5
Defendants answered Plaintiff’s Complaint on February 21, 2014. On July
17, 2014, having completed discovery, Defendants filed a motion for judgment on
the pleadings and for summary judgment pursuant to Federal Rules of Civil
Procedure 12(c) and 56. Plaintiff responded on August 7, 2014, and Defendants
replied on August 19, 2014.

5

Plaintiff’s charge of discrimination included a claim of disability
discrimination.
9

The Court held a motion hearing on October 1, 2014. At this hearing,
Plaintiff’s counsel informed the Court that he was withdrawing the disability
discrimination claim. Therefore, Plaintiff’s claims of reverse sex discrimination
and veteran status discrimination are the only claims remaining.
II.
A.

GOVERNING LEGAL STANDARDS

Judgment on the Pleadings
Federal courts review motions for judgment on the pleadings brought

pursuant to Federal Rule of Civil Procedure 12(c) using the standards applicable to
motions filed under Rule 12(b)(6). Wee Care Child Ctr., Inc. v. Lumpkin, 680 F.3d
841, 846 (6th Cir. 2012). Though litigants employ these procedural mechanisms at
different stages of the proceedings, the purpose of both motions is to test the legal
sufficiency of a plaintiff’s pleadings. Thus, as with Rule 12(b)(6) motions, a Rule
12(c) motion allows a court to make an assessment as to whether a plaintiff has
stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
B.

Summary Judgment
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). A court assessing the appropriateness of summary judgment asks “whether
the evidence presents a sufficient disagreement to require submission to a jury or
10

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)
(quotation omitted).
III.
A.

ANALYSIS

Veteran Discrimination
Defendants contend that the Court should dismiss Plaintiff’s claims of

discrimination relating to his veteran status pursuant to Federal Rule of Civil
Procedure 12(c). The Court agrees, as Plaintiff’s Complaint does not provide any
statutory basis for his claim that he was discriminated against on the basis of his
military service, and neither Title VII nor the ELCRA includes veteran status as a
protected class.6 Because Plaintiff’s arguments regarding veteran discrimination
fail to state a viable claim under the statutes cited in the Complaint, the Court
dismisses Plaintiff’s claims of veteran status discrimination.
B.

Reverse Sex Discrimination
Plaintiff claims that he was a victim of reverse sex discrimination in

contravention of Title VII and the ELCRA. 42 U.S.C. § 2000e-2(a); Mich. Comp.
Laws § 37.2202(1)(a). The crux of Plaintiff’s claim is that he was treated more
harshly than his female counterparts who engaged in similar conduct.
6

Race, color, religion, sex, and national origin are protected classes under
Title VII. 42 U.S.C. § 2000e-2(a). The ELCRA is more protective and includes
religion, race, color, national origin, age, sex, height, weight, or marital status.
Mich. Comp. Laws § 37.2202(1)(a).
11

To survive summary judgment, Plaintiff must adduce direct or
circumstantial evidence of unlawful discrimination. DiCarlo v. Potter, 358 F.3d
408, 414 (6th Cir. 2004). Because Plaintiff has not pointed to any direct evidence
of sex-based discrimination, but rather relies on circumstantial evidence, the
familiar burden-shifting framework enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) governs his claims of
reverse sex discrimination under both Title VII and the ELCRA. Jackson v.
Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999) (noting that courts apply the
same analysis to both Title VII and ELCRA claims). This framework aids courts
in resolving “[t]he ultimate question in every employment discrimination case
involving a claim of disparate treatment[,]” that is, “whether the plaintiff was the
victim of intentional discrimination.” Curry v. SBC Commc’ns, Inc., 669 F. Supp.
2d 805, 824 (E.D. Mich. 2009) (citation omitted).
Under McDonnell Douglas, a plaintiff must first make out a prima facie case
of discrimination, after which the burden of production shifts to the defendant to
articulate a legitimate, non-discriminatory explanation for the adverse employment
action. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252, 101 S. Ct. 1089,
1093 (1981) (citation omitted); EEOC v. Avery Dennison Corp., 104 F.3d 858, 862
(6th Cir. 1997). If the employer discharges its burden, the inference of
discrimination raised by the prima facie case ceases to exist and the plaintiff must
12

then demonstrate that the employer’s proffered explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43,
120 S. Ct. 2097, 2016 (2000); Blizzard v. Marion Tech. Coll., 698 F.3d 275, 285
(6th Cir. 2012).
The Court concludes that Plaintiff has failed to establish a prima facie case
of discrimination. In the alternative, the Court finds that Plaintiff has failed to
point to evidence creating a genuine issue of material fact with respect to whether
his termination was merely a pretext for unlawful gender discrimination.
1.

Plaintiff has not discharged his burden of demonstrating a prima facie
case of unlawful sex discrimination.
The first step in the tripartite framework set forth in McDonnell Douglas

requires a plaintiff to establish a prima facie case of class-based discrimination.
This typically requires a plaintiff to show (1) membership in a protected class, (2)
that he was qualified for the position, (3) that he suffered an adverse employment
action, and (4) that he was treated differently than similarly situated, non-protected
employees. Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006).
“However, in so-called reverse-discrimination cases [brought pursuant to Title
VII], where a member of the majority group claims discrimination, [the Sixth
Circuit has] modified the first and fourth prongs of the traditional prima facie test.”
Simpson v. Vanderbilt Univ., 359 F. App’x 562, 569 (6th Cir. 2009) (citation
omitted). The first element of the modified prima facie framework requires a
13

plaintiff to “demonstrate ‘background circumstances [to] support the suspicion that
the defendant is that unusual employer who discriminates against the majority.’”
Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003)
(alteration in original) (quoting Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249,
255 (6th Cir. 2002)). “To satisfy the fourth prong in such cases, the plaintiff must
show that the defendant treated differently employees who were similarly situated
but were not members of the protected class.” Id. (citation omitted). Notably, a
plaintiff alleging gender discrimination under the ELCRA need not satisfy this
modified approach.7 Lind v. City of Battle Creek, 470 Mich. 230, 681 N.W.2d 334
(2004).
For purposes of the present motion, the Court is willing to assume that
Plaintiff has satisfied the first three elements of the prima facie framework.
Plaintiff has not, however, sufficiently discharged his burden with respect to the

7

Although the Michigan Supreme Court held in Lind that requiring a
member of a majority group to make a different showing than a member of a
minority group imposed an impermissible gender-based distinction under the
ELCRA, the Sixth Circuit has “expressly cautioned against letting” the
“modifications” to the traditional prima facie test “‘impermissibly impose a
heightened pleading standard on majority victims of discrimination.’” Simpson,
359 F. App’x at 569 (quoting Zambertti, 314 F.3d at 257 and citing Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 801 n.7 (6th Cir. 1994) (“We have
serious misgivings about the soundness of a test which imposes a more onerous
standard for plaintiffs who are white or male than for their non-white or female
counterparts.”)).
14

fourth element because Plaintiff has failed to provide adequate evidence of a
similarly situated female employee who was treated more favorably.
Plaintiff contends that he was similarly situated to Ms. Szaroleta, another
former rehabilitation trainer who was supervised by DeLeon. Relying on her
affidavit, Plaintiff points out that Ms. Szaroleta “often did not fill out forms and
had missed appointments and misstated items on [her] productivity logs,” but was
never “disciplined for this, nor the subject of any document review or meetings.”
(Szaroleta Aff. 4.) Further, she one time failed to show up for a training workshop.
Although she received an “Event Occurrences” notice in her file as a result of
missing the event, Ms. Szaroleta contends that this notice was not “discipline of
any sort[.]” (Id.)
With respect to Ms. Szaroleta’s documentation of client progress, there is no
indication of how “often” she neglected to fill out forms. Documentary evidence
submitted by Defendants shows that Ms. Szaroleta did, in fact, fill out client
progress notes on a regular basis. (Szaroleta Progress Notes, Defs.’ Reply Ex. 5.)
While a review of the exhibit reveals that there were a few instances in which the
progress notes were left blank, for example, for a client named “Jenn” on June 17,
19, and 20, 2013, most of the forms contain a description of the various workouts
performed for each client on each day they trained with Ms. Szaroleta. (Id.) In
other words, it appears that Plaintiff had several more missing progress notes for
15

his various clients than did Ms. Szaroleta, which explains why DeLeon never
disciplined Ms. Szaroleta for not filling out the forms.8 (DeLeon Dep. Tr. 59.)
In Simpson, the Sixth Circuit rejected a claim by a male nurse who argued
that his employer, a university hospital, engaged in reverse sex discrimination,
pointing out that the plaintiff’s “failure to chart four patients [was] more egregious
on its face than [his comparator’s] alleged failure to chart one patient.” 359 F.
App’x at 569. Because the plaintiff’s violation of hospital charting policy was
“more egregious” than his comparator’s alleged violation, plaintiff’s employer was
permitted to sanction the plaintiff more severely. Id. This logic applies with equal
force to the circumstances presented here.
Bolstering the Court’s conclusion that the amount of missing client notes
impacted the nature of Plaintiff’s sanction is the fact that Plaintiff attached several
of his own client progress notes to his Response. These progress notes, filled out
on various forms supplied by the Fitness Center, have been submitted to
demonstrate that Plaintiff did, in fact, keep adequate client records. However, it
was brought to this Court’s attention that the produced notes were kept and stored
on Plaintiff’s personal iPad. These notes were not located until sometime after
Plaintiff’s termination, were never provided to Defendants to refute any
8

The Court notes that prior to the January Letter of Disappointment,
DeLeon received a call from the wife of one of Plaintiff’s clients, prompting
DeLeon to review the file of that client. Upon review, DeLeon noticed that the
progress notes were not current.
16

accusations that he was not properly documenting client workouts, and were
produced to Defendants only after the close of discovery. Even if Plaintiff was
keeping the progress notes on his iPad, he was told that he had to complete the
client progress notes for the Fitness Center’s records. Given that many of these
progress notes were produced after the close of discovery, it appears that Plaintiff’s
documentation of client workouts was less complete than Ms. Szaroleta’s, at least
to those lacking access to Plaintiff’s personal iPad. This is significant given
Plaintiff’s admission during his deposition that proper documentation of client
progress was one of the duties of rehabilitation trainers. (Pl. Dep. Tr. 93.) It is
also significant because “[an] employer’s more severe treatment of more egregious
circumstances simply cannot give rise to an inference which would support the
establishment of a prima facie case of discrimination.” Simpson, 359 F. App’x at
569 (quoting Clayton v. Meijer, Inc., 281 F.3d 605, 612 (6th Cir. 2002)).
Plaintiff further points to the fact that, like him, Ms. Szaroleta, went over her
scheduled client appointment times, yet no one reviewed her “productivity logs” or
otherwise disciplined her for so doing so. Ms. Szaroleta’s affidavit indicates that
“[t]here were many, many times when I went over the time limit for training a
patient and put down .75 when I actually spent an hour with [the] patient, but I was
never disciplined nor advised that this was improper.” (Szaroleta Aff. 3.) The
Court notes that this is not what Plaintiff was doing, as he was marking down the
17

actual amount of time that he spent with clients. Using the numbers provided in
Ms. Szaroleta’s affidavit, if Plaintiff had a forty-five minute appointment (“.75”)
but actually spent an hour with the client, he would not write “.75” into his
productivity log, but rather would write “1.0.” While it is indeed unfortunate that
honestly recording time spent with clients raised concerns for DeLeon, the females
who incorrectly reported their time escaped detection. This is particularly true
given that DeLeon’s job required him to travel, such that he was not always on site
at the Fitness Center.
Lastly, Plaintiff also notes that Ms. Szaroleta once “no showed” at a training
session, while he informed DeLeon prior to the smoking cessation workshop that
he would not be able to attend.9 (Szaroleta Aff. 4.) Although Ms. Szaroleta says
that she was not disciplined for missing the event, she does reference a letter
placed in her file regarding the event. While she may not have viewed the letter as
disciplinary, DeLeon testified during his deposition that “[t]here was one discipline
discussion I had with Erin Szaroleta over her course of employment.” (DeLeon
Dep. Tr. 59.) While DeLeon did not recommend that Ms. Szaroleta be terminated
9

Although not raised in the parties’ briefs, at oral argument, Plaintiff’s
counsel noted that after Plaintiff emailed DeLeon to tell him he would not be able
to attend the smoking cessation workshop due to his class schedule, DeLeon
responded by simply indicating that he would remove Plaintiff from the list of
attendees. DeLeon did not otherwise expressly indicate that the cancellation was a
problem but, in his email to Ms. Jobbitt and Ms. Floyd recommending Plaintiff’s
termination, DeLeon referenced the workshop cancellation as one of the reasons
that he believed termination was proper.
18

as a result of missing a training workshop, the record reveals that Ms. Szaroleta
had fewer issues during her employment than Plaintiff did and that termination
may not have been the appropriate course of conduct given that she had one
documented performance issue at that time.
In short, although Ms. Szaroleta admits to engaging in some of the same acts
that ultimately led to Plaintiff’s termination, her admissions do not make the two
similarly situated. “To be deemed similarly-situated, the individuals with whom
the plaintiff seeks to compare his treatment must have . . . engaged in the same
conduct without such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of them for it.” Nishi v.
Siemens AG, 290 F. Supp. 2d 772, 782 (E.D. Mich. 2003) (citations and internal
quotation marks omitted). In addition to the differences between the conduct of
Plaintiff and Ms. Szaroleta highlighted above, there is no indication that Ms.
Szaroleta had ever been suspected of recommending a client to a competitor, that
Ms. Szaroleta ever had issues documenting attendance at group exercise classes or
that she ever suggested that she would start her own log instead of following the
protocol of recording all attendance numbers in one place, or that she had been the
recipient of a letter of disappointment. Ms. Szaroleta is therefore not an
appropriate comparator for purposes of the prima facie test and Plaintiff has failed

19

to establish that Defendants treated him differently than similarly situated female
employees.10
2.

Plaintiff has failed to present any evidence that his discharge was a pretext
for unlawful sex discrimination.
Even assuming that Plaintiff presented sufficient evidence to establish a

prima facie case of discrimination, Defendants have set forth a legitimate,
nondiscriminatory reason for terminating Plaintiff, namely, that Plaintiff had
multiple documented performance issues. Once an employer offers a legitimate
and nondiscriminatory reason for the adverse employment action – here, that
Plaintiff was not satisfactorily discharging the duties of the rehabilitation trainer
position – the burden shifts back to the employee to demonstrate, by a
preponderance of the evidence, that the employer’s proffered explanation is merely
a pretext for discrimination. Reeves, 530 U.S. at 142-43, 120 S. Ct. at 2106;
Blizzard, 698 F.3d at 285. This requires that the employee produce “sufficient
evidence from which a jury could reasonably reject [the employer’s] explanation of
why it fired [him].” Blizzard, 698 F.3d at 285 (first alteration in original); Griffin
10

To the extent that Plaintiff argues that Mary Thompson, the woman who
made allegedly racist comments that Plaintiff then repeated to workers at the front
desk in November of 2012, was treated more favorably than he was, it is
undisputed that all employees even tangentially involved in the incident, including
Plaintiff and Ms. Thompson, were required to participate in the Employee
Assistance Program (“EAP”). Further, there is nothing in the record supporting
Plaintiff’s contention that the two were similarly situated as there is no evidence
that Ms. Thompson had multiple documented performance issues during her
employment. Therefore, Ms. Thompson is not an appropriate comparator either.
20

v. Finkbeiner, 689 F.3d 584, 593 (6th Cir. 2012) (“[T]o survive summary
judgment, a plaintiff need only produce enough evidence to support a prima facie
case and to rebut, but not disprove, the defendant’s proffered rationale.”)
(quotation omitted). Plaintiffs are not typically “required to also produce evidence
that discrimination was the real reason for the adverse employment action.”
Philbrick v. Holder, No. 13-2569, 2014 U.S. App. LEXIS 18017, at *8 (6th Cir.
Sept. 16, 2014) (unpublished) (citing Griffin, 689 F.3d at 593 and Hamilton v.
Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (“[W]e do not routinely require
plaintiffs to submit evidence over and above rebutting the employer’s stated
explanation in order to avoid summary judgment.”) (internal quotation marks
omitted)). However, there are cases “where ‘although the plaintiff has established
a prima facie case and set forth sufficient evidence to reject the defendant’s
explanation, no rational factfinder could conclude that the action was
discriminatory.’” Id. at *24 (quoting Reeves, 530 U.S. at 148, 120 S. Ct. at 2109).
Such circumstances occur where an employee has failed to raise jury question on
the ultimate issue in employment discrimination cases, that is, whether
“discrimination was the real reason[]” for the adverse employment action. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993)
(emphasis in original).

21

A plaintiff-employee has multiple avenues available to rebut an employer’s
proffered justification for an adverse employment action; for instance, by showing
“(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons
did not actually motivate [the discharge], or (3) that they were insufficient to
warrant the [discharge].” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d
1078, 1084 (6th Cir. 1994). These considerations “need not be applied rigidly[;
r]ather, ‘pretext is a commonsense inquiry: did the employer fire the employee for
the stated reason or not?’” Blizzard, 698 F.3d at 285 (quoting Chen v. Dow Chem.
Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009)).
Plaintiff focuses on refuting the factual basis for the various justifications
proffered by Defendants for the termination, and even one event that was never
provided as a reason for Plaintiff’s discharge.11 (Pl.’s Resp. 19-21.) However,
Plaintiff does not dispute that many of the events occurred. Although Plaintiff
argues that he did fill out the client progress notes, he failed to apprise this Court
that the client progress notes attached to his Response were not produced to

11

Plaintiff argues that there was “no basis in fact for the termination of the
Plaintiff based upon the event of November 2012.” (Pl.’s Resp. 20.) Importantly,
however, although the November 2012 incident indisputably caused problems at
the Fitness Center, this incident was not referenced in either the Letter of
Disappointment or in DeLeon’s email recommending termination. Therefore,
Plaintiff’s argument that Defendants lacked a basis in fact for terminating Plaintiff
based upon this event is irrelevant. Also irrelevant, then, is whether Ms. Floyd and
Ms. Jobbitt disciplined Ms. Thompson, the employee who allegedly instigated the
November incident. (Id. at 13.)
22

Defendants until after the close of discovery. Nor does Plaintiff provide any
indication that he offered to produce those notes during his termination meeting
with DeLeon, Ms. Jobbitt, and Ms. Floyd. Plaintiff admitted during his deposition
that documenting client progress was a duty of his position yet he failed to produce
any evidence of his compliance with this duty at the time of the challenged adverse
employment action.
Even assuming that Plaintiff has rebutted Defendants’ proffered justification
for his termination, the Court believes that this is one of those rare cases “where
‘although the plaintiff has established a prima facie case and set forth sufficient
evidence to reject the defendant’s explanation, no rational factfinder could
conclude that the action was discriminatory.’” Philbrick, No. 13-2569, 2014 U.S.
App. LEXIS 18017, at *24 (quoting Reeves, 530 U.S. at 148, 120 S. Ct. at 2109).
This is because Plaintiff has failed to present any evidence that either Ms. Floyd or
Ms. Jobbitt acted on the basis of discriminatory animus or that they did not
honestly believe in the proffered nondiscriminatory reason given for the
employment action. Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998).
In this case, Plaintiff does not offer any evidence of gender discrimination
by either Ms. Floyd or Ms. Jobbitt, the two decisionmakers who approved
DeLeon’s recommendation to terminate Plaintiff. Indeed, Plaintiff chose not to
depose Ms. Jobbitt. That a female decisionmaker terminated a male may suffice to
23

show the background circumstances necessary to set forth a prima facie case,
Zambetti, 314 F.3d at 257, does not mean that it is sufficient to create a genuine
issue of fact with regard to the pretext inquiry. Plaintiff argues that discrimination
is evidenced by the fact that the female decisionmakers did not review any female
employees’ records, however, Plaintiff does not present evidence that either Ms.
Floyd or Ms. Jobbitt had any reason to review those records prior to Plaintiff’s
termination. The decisionmakers were in receipt of an email from DeLeon,
Plaintiff’s direct supervisor, outlining several performance-related issues prior to
terminating Plaintiff. Attached to this email were the Letter of Disappointment, as
well as the emails between Plaintiff and his co-worker regarding filling out the
group exercise log and Plaintiff’s offer to stop teaching the group exercise classes
altogether. There is nothing to suggest that the decisionmakers’ reliance on these
documents was unreasonable.
When Plaintiff raised his concerns regarding the client progress notes at the
termination meeting, Ms. Floyd decided to investigate further.12 Ultimately, Ms.
Floyd reviewed Plaintiff’s client files and compared the contents of those files with
the contents of five randomly selected female rehabilitation trainer client files.
(Floyd Dep. 28.) Upon reviewing these files, Ms. Floyd corroborated DeLeon’s

12

It is not entirely clear whether the finality of Plaintiff’s determination was
dependent upon the results of Ms. Floyd’s investigation.
24

assertion that Plaintiff was not adequately maintaining client files.13 (Id. at 44.)
Again, that Plaintiff kept some files on his personal iPad does not change the fact
that Ms. Floyd did not see those files during the course of her investigation.
In this Court’s view, the inference of sex discrimination that Plaintiff claims
lacks evidentiary support and is based on speculation and conjecture. Cf. SeoaneVazquez v. Ohio State Univ., No. 13-3029, 2014 U.S. App. LEXIS 15865, at *3738 (6th Cir. Aug. 18, 2014) (unpublished) (“Conspiratorial theories based on little
more than speculation cannot save a claim from summary judgment.”). There is no
evidence that either Ms. Jobbitt or Ms. Floyd lacked an honest belief in the
information they possessed at the time of the adverse action or at the time Ms.
Floyd compared Plaintiff’s client files with the files of the female rehabilitation
trainers.
In short, even if female employees were spending more time with clients
than they were supposed to or if they failed to fill out progress notes for their
clients on a number of occasions, there is no indication that either female decisionmaker lacked an “honest belief” in the nondiscriminatory basis upon which they
made the employment decision or that they had any reason to suspect that DeLeon

13

Plaintiff suggests that DeLeon, who brought Ms. Floyd the files to review,
removed various documents from his client files. At the summary judgment stage,
Plaintiff must present evidence beyond mere allegation.
25

made the recommendation upon such a basis.14 This precludes Plaintiff from
establishing that the termination was pretextual. Majewski v. Automatic Data
Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (“[A]s long as an employer
has an honest belief in its proffered nondiscriminatory reason for discharging an
employee, the employee cannot establish that the reason was pretextual simply
because it was ultimately shown to be incorrect.”). This is true even if the
employer’s “conclusion is later shown to be ‘mistaken, foolish, trivial, or
baseless.’” Chen v. Dow Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009) (quotation
omitted); Blizzard, 698 F.3d at 285 (noting that an employer’s decisional process
need not be optimal or leave no stone unturned).
This Court is unable to conclude that this case presents “sufficient evidence
from which a jury could reasonably reject [Defendants’] explanation of why”
Plaintiff was fired. Blizzard, 698 F.3d at 285. Stated differently, the Plaintiff has
not adduced evidence from which a reasonable jury could find that Plaintiff’s

14

Although Plaintiff devotes great attention to how DeLeon treated him
differently than the female rehabilitation trainers, Plaintiff does not argue that
DeLeon’s discriminatory bias influenced the decision made by Ms. Floyd or Ms.
Jobbitt. In other words, Plaintiff does not seek to impose liability pursuant to a
“cat’s paw” theory. See Cobbins v. Tenn. Dep’t of Transp., 566 F.3d 582, 586 n.5
(6th Cir. 2009) (“The ‘cat’s paw’ theory refers to a situation in which a biased
subordinate, who lacks decisionmaking power, influences the unbiased
decisionmaker to make an adverse . . . decision, thereby hiding the subordinate’s
discriminatory intent.”). This is significant in light of the lack of any evidence (as
opposed to speculative conclusions) suggesting that Ms. Floyd or Ms. Jobbitt acted
with impermissible gender bias.
26

termination was the result of impermissible sex discrimination under either Title
VII or the ELCRA.15 As such, Defendants are entitled to summary judgment on
Plaintiff’s reverse sex discrimination claims under both statutes.
IV.

CONCLUSION AND ORDER

For the reasons set forth above, the Court finds that Plaintiff has failed to
discharge his burden of showing that there are disputed issues of material fact
rendering summary judgment improper. Defendants have demonstrated that
judgment as a matter of law is appropriate as to each of Plaintiff’s claims of
discrimination.
Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss Based on the
Pleadings and for Summary Judgment is GRANTED and that the present action is
DISMISSED WITH PREJUDICE.
Dated: November 5, 2014
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Scott W. Rooney, Esq.
George D. Mesritz, Esq.

15

As a result of this conclusion, the Court need not address the parties’
remaining arguments about individual liability and contractually-shortened
limitations periods.
27