Davis v. Fiat Chrysler Automobiles US LLC

Filing 17

ORDER granting 13 defendant's Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VALARIE DAVIS,
Plaintiff,
Case No. 15-13773
HON. GEORGE CARAM STEEH

vs.
FCA US LLC a/k/a
FIAT CHRYSLER
AUTOMOBILE US LLC,
Defendant.
__________________________/

ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (DOC. 13)
Plaintiff Valarie Davis alleges two hostile work environment claims
against her employer, Fiat Chrysler Automobile US LLC. Count I alleges a
violation of Title VII of the Civil Rights Act of 1964. Count II alleges a
violation of Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). The matter
is presently before the Court on defendant’s motion for summary judgment.
Oral argument was held on April 25, 2017. For the reasons stated below,
defendant’s motion for summary judgment is GRANTED.

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I. Background
A. Alleged Discrimination
Plaintiff, an African American woman, is a clay modeler (sculptor)
who has worked for defendant since March 27, 2000. (Doc. 1 at PageID
2). Plaintiff alleges that she was “treated different[ly] from similarly situated
white employees” and subject to “horrific discriminatory conduct” from her
co-workers and managers. (Id.). Plaintiff states that this discrimination
began around 2001 while she was working in Studio 1. (Doc. 13-3 at
PageID 174).
On April 27, 2004, plaintiff submitted a letter to Ms. Gibbs, her EEOC
representative, detailing various actions by co-workers and management
that she considered “blatant racial discrimination” that may be “violations”
of “federal law[s]” and her “civil rights”. (Doc. 13-3 at PageID 178).
Plaintiff’s co-workers referred to her as “chicky monkey” and their “little
brown friend.” (Doc. 1 at PageID 3; Doc. 13-3 at PageID 175). They
commented that plaintiff, a Detroit resident, “live[d] in the ghetto.” (Doc. 133 at PageID 176). While plaintiff was pregnant, they asked her if she “had
chocolate milk in her breast.” (Doc. 1 at PageID 3; Doc. 13-3 at PageID
175). Another co-worker used a “monkey calling device” that produced a
“whistle sound. . . designed to attract monkeys” whenever she walked by.
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(Doc. 1 at PageID 2; Doc. 13-3 at PageID 175). Plaintiff’s supervisor
ridiculed her for wearing a Roots sweatshirt in an apparent reference to the
television miniseries, Roots, which recounts the history of an African man
sold into slavery in America, and his descendants. (Doc. 13-3 at PageID
175). They referred to other African American employees as “Colored” and
“made remarks about their kinky hair.” (Doc. 13-3 at PageID 175). Plaintiff
states that she apprised management and human resources of many of
these acts. (Doc. 1 at PageID 3). Plaintiff also contacted her union
steward on several occasions, submitting complaints and paperwork to aid
an investigation. (Doc. 13-3 at PageID 176). Dissatisfied with their
response, plaintiff met with another union representative in April 2004, “who
strongly recommended that [she] take [her] issues to” defendant’s “EEOC
representative.” (Doc. 13-3 at PageID 176).
Following her April 27, 2004 complaint, plaintiff asserts that she did
not experience any further discrimination while working in Studio 1. (Doc.
13-2 at PageID 60; Doc. 14 at PageID 381).
Plaintiff moved from Studio 1 to Studio 7/8 in 2012. (Doc. 13-2 at
PageID 130). Discrimination allegedly resumed at an unspecified point
following this move. Plaintiff filed a complaint with defendant’s Diversity
Office on March 25, 2013, stating that throughout the past two years, she
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had experienced several actions that she found “unprofessional, ignorant. .
. and even racist.” (Doc. 13-5 at PageID 219-21). These acts included
unspecified comments from co-workers and “a monkey hanging from a
cubical with Christmas lights wrapped around its neck.” (Doc. 13-5 at
PageID 220). Defendant responded by conducting a walk-through of
Studio 7/8. (Doc. 13-6 at PageID 222). Kymberly Kinchen, Keith Worthy,
and Lisa Hornung observed a monkey hanging from a cubicle by its arms
with Christmas lights wrapped around its waist. (Id.). They noted a second
monkey sitting on top of an overhead cabinet at the opposite end of the
studio and concluded that “neither monkey[ ] appeared to be racially
offensive in any way.” (Id.). Following this inspection, on April 8, 2013,
Kinchen and Worthy met with plaintiff to discuss her concerns. (Id.).
Plaintiff emailed Kinchen that evening to report that both monkeys were still
displayed in Studio 7/8 and that she took this “very seriously” given that
“monkeys have” historically “been used to depict” African Americans “in
derogatory terms.” (Doc. 14-27 at PageID 952).
Plaintiff asserts that her co-workers displayed eight to ten monkeys in
Studio 7/8 between 2013 and January 2015. (Doc. 1 at PageID 3). The
monkeys appeared in various forms including photographs within a
calendar, stuffed and inflatable animals, a ceramic mold, and a Valentine’s
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Day card given to plaintiff that depicted a monkey. (Doc. 1 at PageID 4).
Plaintiff also alleges that her co-workers taunted her by repeating Johnny
Cochran’s statement; “if it does not fit, you must acquit.” (Id.). Plaintiff
complained to management and/or human resources about the monkeys
on or about March 25, 2013, February 10, 2014, and February 13, 2015.
(Id.). She also “repeatedly” informed her co-workers that the monkeys
offended her and were “racially insensitive.” (Id.). Plaintiff filed a charge of
discrimination with the EEOC on March 10, 2015. (Doc. 13-10 at PageID
276). She received notice of the EECO’s decision to close its file on her
charge as well as her suit rights on August 20, 2015. (Doc. 13-11 at
PageID 277). Plaintiff filed this lawsuit on October 26, 2015. (Doc. 1 at
PageID 7).
B. Plaintiff’s Bankruptcy
Plaintiff filed a Chapter 13 bankruptcy petition on April 30, 2008.
(Doc. 13-12 at PageID 281-93). Her Chapter 13 bankruptcy plan was
confirmed on October 3, 2008. (Doc. 13-14 at PageID 308-09). The plan
was modified for the last time on July 25, 2013. (Doc. 13-15 at PageID
310-11). The Bankruptcy Court for the Eastern District of Michigan issued
an order discharging plaintiff after the completion of her Chapter 13 plan on
December 10, 2013. (Doc. 13-16 at PageID 312-13).
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II. Legal Standard
Rule 56(c) empowers a court to render summary judgment “if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.” Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en
banc) (citing Fed. R. Civ. P. 56(c)).
The standard for determining whether summary judgment is
appropriate is “‘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 Distrib. 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 (1986)). The evidence and all
reasonable inferences must be construed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Redding v. St. Eward, 241 F.3d 530, 532 (6th
Cir. 2001). "[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of
material fact." Anderson, 477 U.S. at 247-48 (emphasis in original); see
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also Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir.
2001).
If the movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial." First Nat'l
Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations
or denials in the non-movant's pleadings will not meet this burden, nor will
a mere scintilla of evidence supporting the non-moving party. Anderson,
477 U.S. at 248, 252. There must instead be evidence from which a jury
could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing
Anderson, 477 U.S. at 252).
III. Analysis
A. Estoppel
Defendant argues that judicial estoppel precludes plaintiff from
bringing her hostile work environment claims. Plaintiff responds that
judicial estoppel does not apply because she obtained this cause of action
more than seven years after she filed for bankruptcy.

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“Th[e] doctrine [of judicial estoppel] is utilized in order to preserve the
integrity of the courts by preventing a party from abusing the judicial
process through cynical gamesmanship.” White v. Wyndham Vacation
Ownership, Inc., 617 F.3d 472, 476 (6th Cir.2010) (internal citations
omitted). “Judicial estoppel, however, should be applied with caution to
avoid impinging on the truth-seeking function of the court, because the
doctrine precludes a contradictory position without examining the truth of
either statement.” Eubanks v. CBSK Fin. Grp., Inc., 385 F.3d 894, 897 (6th
Cir.2004) (internal citations omitted).
[T]o support a finding of judicial estoppel, [the
Court] must find that: (1) [plaintiff] assumed a
position that was contrary to the one that she
asserted under oath in the bankruptcy proceedings;
(2) the bankruptcy court adopted the contrary
position either as a preliminary matter or as part of a
final disposition; and (3) [plaintiff’s] omission did not
result from mistake or inadvertence. In determining
whether [plaintiff’s] conduct resulted from mistake or
inadvertence, this court considers whether: (1) she
lacked knowledge of the factual basis of the
undisclosed claims; (2) she had a motive for
concealment; and (3) the evidence indicates an
absence of bad faith. In determining whether there
was an absence of bad faith, we will look, in
particular, at [plaintiff’s] “attempts” to advise the
bankruptcy court of her omitted claim.
White, 617 F.3d at 478.

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1. Plaintiff Assumed a Position that Was Contrary to the One She
Asserted Under Oath in the Bankruptcy Proceedings.
“[T]o support a finding of judicial estoppel, [the Court] must find that:
(1) [plaintiff] assumed a position that was contrary to the one that she
asserted under oath in the bankruptcy proceedings.” White, 617 F.3d at
478. “[I]t is well-established that at a minimum, ‘a party’s later position
must be “clearly inconsistent” with its earlier position[ ]’ for judicial estoppel
to apply.” Lorillard Tobacco Co v. Chester, Willcox & Saxbe, LLP, 546 F.3d
752, 757 (6th Cir. 2008) (quoting New Hampshire v. Maine, 532 U.S. 742,
750 (2001)).
Plaintiff’s position in this case is clearly inconsistent with the position
that she asserted under oath in the bankruptcy proceedings. In her
complaint, plaintiff asserts claims under Title VII and the ELCRA, and asks
the Court to “award judgment against defendant” for the “economic and
non-economic damages” she sustained. (Doc. 1 at PageID 7). It is
undisputed that plaintiff did not list this cause of action when she filed for
bankruptcy on April 30, 2008, and did not amend this position while the
bankruptcy was pending. (Doc. 13-12 at PageID 292).
Plaintiff’s failure to disclose her claims was contrary to the bankruptcy
code. A debtor filing under Chapter 13 must file “a schedule of assets and
liabilities.” 11 U.S.C. § 521(1). A cause of action is an asset that must be
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scheduled under § 521(1). Eubanks, 385 F.3d at 897. Debtors are also
“required to disclose all potential causes of action.” Lewis v.
Weyerhaeuser, 141 F. App’x 420, 424 (6th Cir. 2005) (quoting In re Coastal
Plains, Inc., 179 F.3d 197, 208 (5th Cir. 1999)). “The debtor need not know
all the facts or even the legal basis for the cause of action; rather, if the
debtor has enough information. . . prior to confirmation to suggest that it
may have a possible cause of action, then that it is a ‘known’ cause of
action such that it must be disclosed.” In re Coastal Plains, Inc., 179 F.3d
at 208 (quoting Youngblood Grp. v. Lufkin Federal Savings and Loan
Ass’n, 932 F. Supp. 859, 867 (E.D. Tex. 1996)). “Any claim with potential
must be disclosed, even if it is ‘contingent, dependent, or conditional.’” Id.
This “duty of disclosure is a continuing one.” Lewis, 141 F. App’x at 424
(internal quotations and citations omitted).
Despite her duty to disclose, plaintiff never listed this cause of action.
As such, plaintiff now assumes a position contrary to the one she asserted
under oath in her bankruptcy proceeding.
2. The Bankruptcy Court Adopted the Contrary Position.
“[T]o support a finding of judicial estoppel, [the Court] must find that: .
. . (2) the bankruptcy court adopted the contrary position either as a
preliminary matter or as part of a final disposition.” White, 617 F.3d at 478.
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It is undisputed that plaintiff did not list these claims in her schedule of
assets and liabilities, and that plaintiff never amended this position while
her bankruptcy was pending. It is also undisputed that the bankruptcy
court issued plaintiff’s discharge order on December 10, 2013. (Doc. 13-16
at PageID 312-13). The undisputed facts, therefore, indicate that the
bankruptcy court adopted plaintiff’s contrary position.
3. Plaintiff’s Omission Did Not Result from Mistake or
Inadvertence.
“[T]o support a finding of judicial estoppel, [the Court] must find that: .
. . (3) [plaintiff’s] omission did not result from mistake or inadvertence.”
White, 617 F.3d at 478. “In determining whether [plaintiff’s] conduct
resulted from mistake or inadvertence, this court considers whether: (1) she
lacked knowledge of the factual basis of the undisclosed claims; (2) she
had a motive for concealment; and (3) the evidence indicates an absence
of bad faith.” Id.
a. Plaintiff Did Not Lack Knowledge of the Factual Basis of
the Undisclosed Claims.
Plaintiff alleges a hostile work environment based on discrimination
that allegedly occurred between 2001 and 2015. Most of the allegations in
her complaint, (Doc. 1 at PageID 2-4), are reflected in two pieces of
evidence; plaintiff’s April 27, 2004 letter to her EEOC representative, (Doc.
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13-3 at PageID 174-78), and her March 25, 2013 letter to defendant’s
diversity office, (Doc. 13-5 at 219-21). If a single act contributing to a Title
VII hostile environment claim occurs within the filing period outlined by 42
U.S.C. § 2000e-5, then “the entire time period of the hostile environment
claim may be considered by a court for the purposes of determining
liability.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).
“It does not matter that some of the component acts fall outside the
statutory time period.” Id. Count I, therefore, encompasses all of these
allegations. But, due to the ELCRA’s three year period of limitations, Count
II is based solely on acts occurring between 2012 and 2015. Acts
committed prior to 2012, including all of the allegations included in plaintiff’s
April 27, 2004 complaint, may serve as background evidence to
contextualize the ELCRA claim.
When plaintiff filed for bankruptcy on April 30, 2008, she had
knowledge of all of the discrimination that she experienced and directly
observed between 2001 and 2004. These acts include various comments
from co-workers and managers regarding a monkey, brown skin, kinky hair,
and ghettos, as well as the use of a “monkey calling device.” (Doc. 13-3 at
PageID 174-78). In addition to her knowledge of these facts, plaintiff knew
that the acts offended her. She described them as “blatant racial
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discrimination” that may be “violations” of “federal law[s]” and her “civil
rights.” (Doc. 13-3 at PageID 175). Plaintiff also knew that she had
complained about these acts. She reported them to management and
human resources. (Doc. 1 at PageID 3). She contacted her union steward
to submit multiple complaints and paperwork to aid their investigation.
(Doc. 13-3 at PageID 176). She also met with an additional union
representative “who strongly recommended that [she] take [her] issues to”
defendant’s “EEOC representative.” (Doc. 13-3 at PageID 176).
Plaintiff asserts that she did not have a potential Title VII or ELCRA
claim against defendant on April 30, 2008 because she had never filed an
EEOC charge regarding the discrimination alleged in her April 27, 2004
complaint and, in 2008, was time barred from doing so. (Doc. 13-3 at
PageID 174-78). But plaintiff’s circumstances changed. She asserts that
racial discrimination resumed around 2012. (Doc. 13-5 at PageID 220)
(alleging discrimination “during the last 2 years and even now [March 25,
2013].”) During this time, while her bankruptcy was still pending, plaintiff
gained more knowledge of the factual basis of Counts I and II. On March
25, 2013, plaintiff complained about a monkey wrapped in Christmas lights
in Studio 7/8. (Doc. 13-5 at PageID 220). She complained about this and
a second monkey on April 8, 2013. (Doc. 14-26 at PageID 950). Plaintiff
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also knew that these acts offended her and that she had complained about
them. In April 2013, she met with defendant’s diversity representatives and
stated that she took these acts “very seriously” given that “monkeys have”
historically “been used to depict” African Americans “in derogatory terms.”
(Doc. 14-27 at PageID 952). The Court, therefore, finds that plaintiff had
knowledge of the factual basis of the undisclosed claims by April 2013 such
that the omission of these claims did not result from mistake or
inadvertence.
b. Plaintiff Had a Motive to Conceal her Claims.
Debtors petitioning for bankruptcy protection always have a motive to
conceal undisclosed claims; “wanting to keep any settlement or judgment
to himself.” Stephenson v. Malloy, 700 F.3d 265, 274 (6th Cir. 2012). See
also Lewis, 141 F. App’x at 426 (“It is always in a Chapter 13 petitioner’s
interest to minimize income and assets.”). If a claim is disclosed, it will
“[become] a part of the bankruptcy estate, then the proceeds from it could
go towards paying [the debtor’s] creditors, rather than simply to paying [the
debtor].” White, at 479.
Plaintiff concealed the existence of her claims. It is undisputed that
she did not list this cause of action when filing for bankruptcy on April 30,
2008, and did not amend this position while the bankruptcy was pending.
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(Doc. 13-12 at PageID 292). Concealing the claims allowed them to be
exempted from plaintiff’s bankruptcy estate. If exempted, plaintiff would be
likely to “keep any settlement or judgment to [herself].” Stephenson, 700
F.3d at 274. The Court, therefore, finds that plaintiff had a motive to
conceal her claims.
c. The Evidence Does Not Indicate an Absence of Bad
Faith.
The “absence of bad faith inquiry focuses on affirmative actions taken
by the debtor to notify the trustee or bankruptcy court of an omitted claim.”
Kimberlin v. Dollar Gen. Corp., 520 F. App’x 312, 315 (6th Cir. 2013). It is
undisputed that plaintiff did not list these claims in her original schedule of
assets. (Doc. 13-12 at PageID 292). Further, despite her continuing duty
to disclose assets including a potential cause of action, plaintiff never
amended the schedule to list the claims while her bankruptcy was pending.
The evidence before the Court, therefore, does not indicate an absence of
bad faith.
4. Plaintiff’s Arguments Are Not Dispositive.
Plaintiff argues that she did not fail to disclose a pre-petition claim
because, due to her failure to file an EEOC charge around 2004 and the
ELCRA’s limitation period, she did not have a cause of action on April 20,
2008. Plaintiff instead asserts that her claims arose post-petition. But
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Chapter 13 debtors have a continuing obligation to disclose all potential
claims, Lewis, 141 F. App’x at 424, including potential claims that arise
post-petition while the bankruptcy is pending. See Kimberlin, 520 F. App’x
at 315 (finding that plaintiff should have notified the court of her potential
post-petition claim that arose only 41 days before her final bankruptcy
payment was scheduled so that the Court could have “modified her
Chapter 13 plan to grant creditors some percentage of any future
recovery.”); Scisney v. Gen. Elec. Co., No. 4:14-cv-00008, 2015 WL
7758542, at *5 (W.D. Ky. Dec. 1, 2015) (applying judicial estoppel where
the plaintiff, a Chapter 13 debtor, experienced discrimination both prepetition and post-petition, “knew of the factual basis for potential claims
post-petition but pre-discharge,” and “failed to disclose any of them at any
time.” See also In re Flugence, 738 F.3d 126, 129 (5th Cir. 2013)
(“Chapter 13 debtors have a continuing obligation to disclose post-petition
causes of action.”). Thus, even if plaintiff’s claims are viewed as postpetition, the allegations occurring between 2012 and April 2013 triggered
her duty to disclose. These allegations constitute a potential claim
because, even if plaintiff did “not know all the facts or even the legal basis
for the cause of action” by April 2013, these acts provided “enough
information. . . prior to confirmation to suggest that [plaintiff] may have a
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possible cause of action” which is considered “a ‘known’ cause of action
such that is must be disclosed.” In re Coastal Plains, Inc., 179 F.3d at 208
(quoting Youngblood Grp. 932 F. Supp. at 867). Further, plaintiff’s
bankruptcy was still pending in April 2013 when this potential claim arose.
See (Doc. 13-16 at PageID 312-13). Therefore, even if this cause of action
arose post-petition, plaintiff was required to disclose these claims.
B. Hostile Work Environment
Hostile work environment claims involve repeated conduct. Morgan,
536 U.S. at 115. These claims “offer[ ] employees protection from a
‘workplace[ ] permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment. . . .’” Barrett v.
Whirlpool Corp., 556 F.3d 502, 514 (6th Cir.2009) (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)) (alteration in original). “To prove that
[s]he was subject to a hostile work environment in violation of Title VII,
plaintiff must prove: (1) [s]he belongs to a protected group; (2) [s]he was
subject to unwelcome harassment; (3) the harassment was based on race;
(4) the harassment affected a term, condition, or privilege of employment
and (5) defendant knew or should have known about the harassment and
failed to take action.” Moore v. KUKA Welding Sys. & Robot Corp., 171
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F.3d 1073, 1078–79 (6th Cir.1999). The elements of a hostile work
environment under the ELCRA “are substantially the same.” Curry v. SBC
Commc'ns, Inc., 669 F. Supp. 2d 805, 833 (E.D. Mich. 2009) (citing Quinto
v. Cross & Peters Co., 451 Mich. 358, 368-69 (1996)).
The Court finds that the first two elements are satisfied here, as
plaintiff, an African American, repeatedly complained of the alleged
discrimination. The comments allegedly made to plaintiff between 2001
and 2004 constitute harassment based on race. It is less clear whether the
presence of numerous monkeys in Studio 7/8 also constitute harassment
based on race. Defendant argues that a few monkeys were placed in
Studio 7/8 prior to plaintiff joining that office. Moreover, they argue that all
of the monkeys were “sentimental mementos,” (Doc. 13 at PageID 105), as
opposed to racial harassment. Plaintiff disagrees, asserting that monkeys
have historically been used to depict African Americans in derogatory
terms. The Court, however, finds that even if the monkeys constitute racial
harassment, plaintiff’s claim fails because the race-based harassment was
not sufficiently severe or pervasive.
The Court must “consider whether the totality of [the] race-based
harassment was ‘sufficiently severe or pervasive to alter the conditions of
[plaintiff’s] employment and create an abusive working environment.’”
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Williams v. CSX Transp. Co., 643 F.3d 502, 512 (6th Cir. 2011) (quoting
Harris, 510 U.S. at 21). The harassment must be severe or pervasive in
two aspects. Curry, 669 F. Supp. 2d at 833. “Both an objective and
subjective test must be met; in other words, the conduct must be so severe
or pervasive as to constitute a hostile or abusive working environment both
to the reasonable person and the actual victim.” Randolph v. Ohio Dep't of
Youth Servs., 453 F.3d 724, 733 (6th Cir.2006). “Factors to consider
include ‘the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.’”
Williams, 643 F.3d at 512 (citing Harris, 510 U.S. at 23).
The alleged racist statements made between 2001 and 2004 “are
certainly insensitive, ignorant, and bigoted.” Id. at 513. The display of
numerous stuffed monkeys is also insensitive. But, even when considered
in their totality, this harassment is not sufficiently severe or pervasive. The
Sixth Circuit “has established a relatively high bar for what amounts to
actionable discriminatory conduct under a hostile work environment
theory.” Phillips v. UAW Int'l, 854 F.3d 323, 328 (6th Cir. 2017) (citing
Williams, 643 F.3d at 506, 513 (finding no hostile work environment where
defendant “call[ed] Jesse Jackson and Al Sharpton ‘monkeys' and [said]
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that black people should ‘go back to where [they] came from’” among other
racist comments); Reed v. Procter & Gamble Mfg. Co., 556 Fed.Appx. 421,
432 (6th Cir. 2014) (no hostile work environment where plaintiff was
subjected to race-based comments and his supervisor stood behind him
and made a noose out of a telephone cord); Clay v. United Parcel Service,
Inc., 501 F.3d 695, 707–08 (fifteen racially-motivated comments and
instances of disparate treatment over a two-year period were isolated, not
pervasive, and therefore not actionable under Title VII). “The misconduct
alleged here . . . does not clear that bar.” Phillips, 854 F.3d at 328. As in
Williams, the alleged statements “more closely resemble ‘a mere offensive
utterance’ than conduct that is ‘physically threatening or humiliating.’”
Williams, 643 F.3d at 513. Further, the statements are isolated from the
monkey displays by both time and space. The former occurred in Studio 1
between 2001 and 2004. The latter occurred in Studio 7/8, a different
office, between 2013 and 2015. Finally, there is no evidence that the
harassment unreasonably interfered with plaintiff’s work performance. She
has worked for defendant since 2000 without any leaves, absences, or
unsuccessful performance that she attributes to the alleged harassment.
As such, defendant is entitled to judgment as a matter of law.

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IV. Conclusion
Plaintiff does not cite to evidence that creates a genuine issue of
material fact as to whether she assumed a position contrary to the one she
asserted in her bankruptcy proceeding, whether the bankruptcy court
adopted the contrary position as part of a final deposition, or whether her
omission resulted from mistake or inadvertence. Moreover, plaintiff has not
provided a genuine issue of material fact regarding the severity and
pervasiveness of her hostile work environment claims. Therefore, for the
reasons stated above, the Court finds that defendant is entitled to summary
judgement on the basis of judicial estoppel.
IT IS SO ORDERED.
Dated: August 22, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 22, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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