Spink-Krause v. Medtronic, Inc
OPINION AND ORDER Granting in Part and Denying in Part 21 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-12148
Sean F. Cox
United States District Court Judge
OPINION & ORDER
GRANTING IN PART, AND DENYING IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff filed this action against her former employer, alleging three claims: 1) a “sexplus” discrimination claim under Michigan’s Elliott Larsen Civil Rights Act (“the ELCRA”),
with the plus factor of having children; 2) a hostile work environment based on sexual
harassment claim under the ELCRA; and 3) a retaliation claim under both the ELCRA and Title
VII. The matter is currently before the Court, following the close of discovery, on Defendant’s
Motion for Summary Judgment. The parties have fully briefed the issues, and the Court heard
oral argument on October 12, 2017.
For the reasons set forth below, the Court shall grant the motion in part and deny it in
part. The Court shall grant summary judgment in Defendant’s favor as to Plaintiff’s “sex-plus”
discrimination claim under the ELCRA, because Plaintiff has failed to establish the fourth
element of a prima facie case. The Court shall also grant summary judgment in Defendant’s
favor as to Plaintiff’s hostile work environment based on sexual harassment claim under the
ELCRA because Plaintiff cannot establish respondeat superior liability. But the Court concludes
that Defendant is not entitled to summary judgment in its favor as to Plaintiff’s retaliation claim
under the ELCRA and Title VII because, construing the evidence in the light most favorable to
her, there are genuine issue of fact for trial.
Plaintiff Corina Spink-Krause filed this action against Defendant Medtronic, Inc. on June
13, 2016, asserting the following claims: 1) “Hostile Environment Sexual and/or Gender
Harassment in Violation of ELCRA” (Count I); and 2) “Retaliation in Violation of Title VII and
ELCRA” (Count II1).
Pursuant to this Court’s original Scheduling Order, discovery was set to close on
February 7, 2017. (D.E. No. 9). At Plaintiff’s Counsel’s request, however, discovery was
extended and this Court’s Second Scheduling Order provided that discovery would close on
April 7, 2017. (D.E. No. 19). The docket reflects that Plaintiff filed no motions to compel
Following the close of discovery, Defendant filed a Motion for Summary Judgment.
(D.E. No. 21). Plaintiff’s Counsel requested an extension of time for responding to Defendant’s
motion and this Court granted the requested extension, over Defendant’s objection. (See 7/20/17
and 7/31/17 text-only orders).
This Court’s practice guidelines, which are expressly included in the Scheduling Order
issued in this case, provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:
a. The moving party’s papers shall include a separate document entitled
Statement of Material Facts Not in Dispute. The statement shall list in separately
numbered paragraphs concise statements of each undisputed material fact,
Although labeled “Count III,” this is the second count.
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled
Counter-Statement of Disputed Facts. The counter-statement shall list in
separately numbered paragraphs following the order or the movant’s statement,
whether each of the facts asserted by the moving party is admitted or denied and
shall also be supported by appropriate citations to the record. The CounterStatement shall also include, in a separate section, a list of each issue of material
fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute
shall be deemed admitted unless controverted in the Counter-Statement of
(D.E. No. 19 at 2-3).
In compliance with this Court’s guidelines, in support of its Motion for Summary
Judgment, Defendant filed a “Statement of Material Facts Not In Dispute” (“Def.’s Stmt.). In
response to that submission, Plaintiff filed a “Counter-Statement of Disputed Facts” (Pl.’s
The following material facts are gleaned from the evidence submitted by the parties,
viewed in the light most favorable to Plaintiff, the non-moving party.
Plaintiff Corina Spink-Krause is a female who has children. (Def.’s Stmt. & Pl.’s Stmt.
at ¶¶ 2-3).
Defendant Medtronic is a healthcare solutions company that provides medical
technologies, services, and solutions to hospitals, doctors, and other health care providers.
(Def.’s Stmt. & Pl.’s Stmt. at ¶¶ 4).
Defendant hired Plaintiff in February of 2001, as a Sales Associate in its Surgical
Technologies Group. In October of 2001, Plaintiff was promoted to Area Sales Manager
(“ASM”). (Def.’s Stmt. & Pl.’s Stmt. at ¶¶ 5-6).
As an ASM, Plaintiff was responsible for coordinating the sale and support of ear, nose,
and throat (“ENT”) products to hospitals, doctors, and other Medtronic customers in her
assigned sales territory. (Def.’s Stmt. & Pl.’s Stmt. at ¶¶ 6). Defendant had a written Job
Summary that described Plaintiff’s duties and responsibilities. (Def.’s Ex. 4). As a ASM,
Medtronic expected Plaintiff to achieve 100% of her quota in all sales categories, to work to
retain existing business, to develop new business, and to develop and support clinical
relationships with her customers. (Id. at ¶ 8).
Plaintiff worked as an ASM from the date of her promotion in 2001 until her termination
in March of 2015. (Def.’s Stmt. & Pl.’s Stmt. at ¶ 9). In addition, for two or three years during
that time period, Plaintiff also served as a Field Trainer at Medtronic. (Pl.’s. Dep. at 17).
In May Of 2012, Medtronic promoted Greg Bonner to Regional Sales Director for the
STG’s Midwest Region. (Def.’s Stmt. & Pl.’s Stmt. at ¶ 10). The Midwest Region included
three ENT sales territories in Michigan. (Id.). Bonner became Plaintiff’s immediate supervisor
at this time.
Defendant’s motion and supporting papers stress that Medtronic received some
complaints relating to Plaintiff’s performance from customers starting in 2012 and references: 1)
an April 2012 complaint from the University of Michigan Hospital (see Def.’s & Pl.’s Stmts. at
¶¶ 17-20); 2) an August 2012 complaint from St. Mary Mercy Hospital (Id. at ¶¶ 21-29); and 3)
an August 2012 complaint from Biotronic. (Id. at ¶¶ 30-33). The record presented reflects,
however, that Plaintiff never received a written warning or write up – of any nature – from the
date of her hire in 2001 until after she complained to Human Resources in April of 2014.
In August of 2013, Plaintiff was given a written evaluation, titled “Performance and
Development Summary,” by Bonner. (Def.’s Ex. 10).
Bonner rated Plaintiff as “Strong” or “Solid” in six of nine specified areas: “Mission
Values,” “Compliance and Integrity,” “Clear Thinking,” “Driven to Win,” “Boundaryness,” and
“Global.” There were three areas that Bonner noted were “Areas of Focus Vital for Role:”
“External Focus,” “Inspires Others,” and “Executes.”
As to her objective to “achieve a minimum of 100% PTQ for Core Products,” Bonner
wrote: “Q1 was a slow start, however Q2 has started out very strong. Q2 is currently 6% over
her quota and has helped fill the deficit left in Q1. Currently, Cori is 3% below her YTD core
PTQ.” (Id. at Pg ID 261).
As to Plaintiff’s strengths, Bonner stated “Cori has a great knowledge of our products
and a passion to win. Her account relationships are strong.” (Id. at Pg ID 263) (emphasis
added). As to areas that need development, Bonner stated “Cori will need to work on
administrative duties. In addition, there is an opportunity for closer teamwork and
In a letter written on November 15, 2013, Bonner addressed several customer complaints
with Plaintiff. (Pl.’s Ex. 11). The letter ended by saying “[s]hould an additional customer
complaint be received, a formal Warning Letter will be issued.” (Id.) (emphasis added).
On April 4, 2014, Plaintiff contacted Veronica Lambert with Defendant’s Human
Resources Department. (Pl.’s Dep. at 138). Plaintiff testified:
And is this the first date that you made contact with Ms. Lambert in HR
regarding the complaint against Mr. Bonner?
It was the first time I spoke with her, yes.
And what was it that triggered your decision to call on that particular day?
Greg had called me that morning and had been very hostile. He knew I
was on vacation, yelling at me about stuff regarding sales, things we
discussed a number of times, making accusations that I wasn’t doing my
job correctly, saying that James was angry with me, saying that if I didn’t
pull it together I would be fired and let go.
And I just had enough. He had continued to – just kept telling me I
was incompetent at this, a single mother should not be doing this job and I
was at the point where I was on vacation, it had been put in and had just
had enough and called HR.
(Pl.’s Dep. at 138-39).
Lambert told Plaintiff she would address her complaint when Plaintiff returned from
vacation, which was acceptable to Plaintiff. (Def.’s Stmt. & Pl.’s Stmt. at ¶ 53).
On April 17, 2014, Plaintiff spoke with Lambert and told her she had several issues with
Bonner: 1) an incident involving a “bathroom wall” comment made by Bonner; 2) an incident
with Bonner involving an expense issue; 3) an alleged lack of support from Bonner, her
supervisor; and 4) Bonner having made several “single mother” comments to her.
First, Plaintiff told Lambert that one evening, in either January or February of 2013, she
was at a basketball game with Bonner and other co-workers. Plaintiff testified that Medtronic’s
new on-site representative for University of Michigan Hospital asked Plaintiff for her business
card but she did not have one. Plaintiff testified that when Bonner heard this, he said, “Oh, don’t
[w]orry about it, if you want to find her number, it’s on the bathroom wall at U of M.” (Def.’s
Stmt. & Pl.’s Stmt. at ¶ 57). Plaintiff testified that Bonner then “just kind of chuckled and
walked away” and that she was “completely offended and walked away” because she did not
know what else to do. (Pl.’s Dep. at 114).
Plaintiff did not talk to Bonner about the bathroom wall comment. (Id.). Plaintiff did not
report the incident to Lambert, Romero, or anyone else with supervisory and/or disciplinary
authority over Bonner until Plaintiff reported it to Lambert in April of 2014. (Def.’s Stmt. &
Pl.’s Stmt. at ¶ 60).
Second, Plaintiff told Lambert about an expense issue involving Bonner. (Def.’s Stmt. &
Pl.’s Stmt. at ¶ 64). Plaintiff testified that at an American Osteopathic Association meeting in
Orlando in May of 2013, she and Bonner had dinner with group of doctors. (Id. at ¶ 64).
Plaintiff testified that at the end of the dinner, Bonner asked her to pay the bill so that he did not
have to fill out an expense report for the dinner and Plaintiff did so. (Id. at ¶ 66). Later,
Medtronic’s legal counsel called or sent Plaintiff an email asking her why Bonner did not pick
up the check, as he was the most senior Medtronic employee at the dinner. (Id. at ¶ 67).
Plaintiff called Bonner and Bonner told her to tell Elder that Bonner had left the dinner early and
that is why he did not pick up the check. Plaintiff did as Bonner asked. Medtronic did not
discipline Plaintiff regarding this event. (Id. at ¶ 70-73).
Third, Bonner reported that she did not feel that Bonner supported her. (Def.’s Stmt. &
Pl.’s Stmt. at ¶ 74). Plaintiff testified:
I wasn’t getting any support. I had asked – he’d call me and ask if he could come
ride with me, I’d switch things around so the could come and ride with me that
day because he’d call me first things in the morning and then by noon he’d call
and say, “Oh never mind, I’m not going to make it.”
(Plaintiff’s Dep. at 104).
While Bonner was her manager, he did meet with Plaintiff three or four times at her
accounts. (Def.’s Stmt. & Pl.’s Stmt. at ¶ 76). Plaintiff testified she asked Bonner to ride along
with her at least a dozen times but Bonner was always too busy. (Def.’s Stmt. & Pl.’s Stmt. at ¶
75). Plaintiff testified:
What about were there any instances where you called Mr. Bonner and
said, “I would like you to ride along with me and he said I would and
didn’t do that?
Numerous times I had asked for him to schedule ride-alongs with me, but
he was always too busy.
Can you identify the numerous occasions?
And throughout the time he was my manager Greg rode with me a total of,
I would say, three to four times max and even then he didn’t ride with me,
he would often ride – well, he would always ride separate because he had
so many phone calls to make and my territory was really vast in drive
time, so I had requested that he ride with me so we would have that time
together to discuss, strategize, etc., which never – he always rode separate.
And when he did ride along with you what would he do?
He wouldn’t ride with me, he would ride into an account with me, he
would go into an account, do what I was doing, introduce himself, but
usually he was done by noon, 1 o’clock and would cut out. We would
spend a half day together max.
Right. Anything else?
He was unapproachable as far as being a boss. I felt like he was always
busy, unable to support and I didn’t feel his leadership skills, he was very
helpful within the region.
(Pl.’s Dep. at 108-09 & 128).
Fourth, Plaintiff told Lambert that Bonner had allegedly made comments to her about
being a single mother and whether she had the right job for a single mother, that maybe it was
time for her to look for another job, that this was a hard job as a single mother, and that maybe
she wasn’t cut out to do sales as a single mother. (Def.’s Stmt. & Pl.’s Stmt. at ¶ 80).2
Specifically, during her deposition, Plaintiff testified as follows with respect to the
comments Bonner made to her:
What specifically did Bonner say to you about being a single mother?
This was a hard job as a single mother, maybe I wasn’t cut out for doing
sales as a single mother.
Anything else that he said to you about your status as a single mother?
Bonner denies having made such comments.
Not that I recall verbatim.
Then you said that he said to you that it might be time to look for another
And when did he make that first comment?
About the same time as the single mother comment.
And did you ask him why he was suggesting to you that you might want to
look for another job?
What’s [sic] the basis of being a single mother doing the job.
And then you said he made comment to you about being a female, correct?
That had to do with being a single mother.
A single mother?
And you recall all of these comments beginning in or about the first six
months that he was your manager, correct?
And we’ve established that he became your manager in or about May of
(Pl.’s Dep. at 102-04; see also 127 & 134).
Although Plaintiff testified that Bonner started making these alleged comments within his
first six months as her manager (May-November, 2012), Plaintiff did not report the comments to
Human Resources until April of 2014 because she believed things would get better. (Def.’s
Stmt. & Pl.’s Stmt. at ¶ 81).
Plaintiff testified that she believed that her report to Human Resources had not been kept
confidential because Bonner called her very soon after she made her complaint to Lambert.
(Pl.’s Dep. at 92).
On April 22, 2014, Plaintiff reported to Lambert in Human Resources that Bonner had
called her and told her not to contact anybody in HR:
And what did you discuss on the telephone call?
That I was concerned that he had called me and told me not to contact
anybody in HR, that everything was supposed to be handled directly
It looked bad on me if I contacted HR or anybody above him to
discuss any issues that I ever had and that he was very concerned that I
would ever call anybody else.
When did Mr. Bonner allegedly make that call?
He called me the night before and I want to say again in the morning.
So that would be April 21 of 2014? The voicemail was on April 22, so it
it’s the day before it would have been April 21?
Or the morning. I don’t recall. I knew it was right around the time I had
just talked to Veronica.
Did you actually speak to Mr. Bonner?
Or did he leave a message for you?
No, I spoke to Greg.
How long did that conversation last?
Maybe two to three minutes at the most, very quick.
And tell me what you recall him saying in that conversation?
He told me that he was being very clear that I was not to contact HR or
anyone above him, that it looks bad on me or – and him if there were any
problems in the region and on myself.
So if there was any problem, I needed to contact him directly.
(Pl.’s Dep. at 143-45).
In May of 2015, Medtronic hired another ASM for Michigan for FY 2014, Alyssa
Hamblin. (Def.’s Stmt. & Pl.’s Stmt. at 99). Medtronic created an expansion territory for
Hamblin by taking accounts from Plaintiff and another ASM in Michigan, Kylee Paul. (Pl.’s
Stmt. at 100; Pl.’s Dep. at 94).
Bonner told Plaintiff that he was the one deciding how to divide up territories for the new
ASM. (Pl.’s Dep. at 96). Plaintiff testified:
But in that conversation or any other conversation you had with Mr.
Bonner about the realignment of accounts to create the fourth territory did
Mr. Bonner ever say to you, “I’m the one deciding how these territories
are going to be divided up?
He did say that?
Did he tell you how he had decided to realign the accounts?
What impact did the realignment have on you?
I lost one of my oldest accounts which was the University of Michigan. It
increased all of my drive time and left only two accounts within – three
accounts within the closest proximity of where I live and everything else
just increased drive time.
Do you think that the fact that you’re a female and you had children had
any impact as to how your accounts were realigned for fiscal year of
I think Greg realigned it so it would be more difficult for me to do my job.
What evidence do you have of that?
I have no evidence to that, but he made it more difficult within the
proximity of where I live. Hired a rep that lived seven minutes from my
house and took away all the accounts that were closest to me and gave
them to the rep that lived seven minutes to my house.
Why do you believe Mr. Bonner was trying to make your job more
difficult by doing that?
I had gone ahead and reported him to HR and he no longer wanted to have
to deal with me.
It is your testimony that you made the report to HR before the
announcement of Ms. Hamblin’s hiring?
And before the realignment of your accounts?
(Pl.’s Dep. at 95-98).
Plaintiff testified that she reported to Human Resources that she believed that Bonner
was retaliating against her for having made her prior report:
Did you ever tell HR that you thought the realignment of your accounts
was retaliation for you having made the complaint about Mr. Bonner to
And you’re certain you said, “I think Bonner has realigned by accounts to
make life more difficult for me because I’ve complained about him to
Verbatim for what you just said, no.
No, I didn’t say verbatim. I’m saying is that in general what you said.
Well, then tell me specifically what you told HR about the issue?
That was almost three years ago. I can’t tell you verbatim for what I said,
but I will say it was along the lines of, “I know Greg has realigned this to
make it more difficult because he’s retaliating against me for what I’ve
(Pl.’s Dep. at 98-99).
On May 5, 2014, Bonner wrote an email to his superior, James Romero, stating he
“wanted to make [him] aware of another customer complain [sic] I have received regarding one
of my ENT reps. As we’ve discussed, this seems to be a recurring pattern with Cori and spans
multiple accounts and individuals.” (Pl.’s. Ex. 5). Bonner states he spoke with a Dr. Lopatin and
that Bonner asked him for details. The email notes that Dr. Lopatin told Bonner he did not want
the information he gave him to be shared with Cori and Bonner told him that puts him in a
“tough” and “no action” position.
A May 9, 2014 email from a customer (Dr. Steel) to Romano discussed Plaintiff and
whether she was going to be reassigned to his account in the territory alignment. (Pl.’s Ex. 6).
In that email, the customer expresses that he would like to remain with the representative he has
most recently had servicing his account. Dr. Steel’s email says that he had previously talked to
Bonner about coverage issues with Plaintiff (when she had been on his account) but that Bonner
“never followed up with a phone call, as [the customer] had requested.” (Id.).
Defendant also directs the Court to complaints concerning Plaintiff’s past service to
clients, that were raised with Bonner by the new or current sales representative servicing those
clients, in June of 2014. (See Def. & Pl.s’ Stmt. at ¶¶ 121-129).
As of October of 2014, Plaintiff had reported to Bonner for 10 consecutive fiscal
quarters. (Def.’s & Pl.’s Stmt. at ¶ 131). Defendant states that “[d]uring those ten quarters –
from beginning of FY 2013 (in May 2012) through the sixth month of FY 2015 (in October
2014) – Plaintiff:” 1) “did not achieve 100% of her quota for total sales in 9 of 10 quarters; and
2) had a performance to plan of less than 95% in 9 of 10 quarters.” (Def.’s Stmt. at ¶ 132;
It is undisputed that on December 5, 2014, Plaintiff was placed on a performance
improvement plan (“PIP”). Plaintiff testified that Bonner was the person to notify her that she
was being placed on a PIP. (Pl.’s Dep. at 160).
The PIP advised Plaintiff that her “performance is not meeting expectations for your
position of an ENT Area Sales Manager and needs immediate and consistent improvement for
you to continue employment with Medtronic.” (Def.’s Ex. 22). The stated reasons for the PIP
were: 1) Plaintiff’s sales performance; and 2) customer complaints. The PIP stated that, as to the
time period “through FY 15 Q3, 1/23/15,” Plaintiff would be expected to achieve a minimum of
100% to quota in overall Core ENT, achieve a minimum of 100% to quota as to capital, and
disposables. The PIP stated that it the stated improvement does not occur, “further disciplinary
action up to an including termination of employment will take place.”
A revised PIP was issued on December 12, 2014, to correct a typographical error. (Def.’s
Following a physical injury, however, Plaintiff was unable to work from December 16th
through January 16, 2015. (Def.’s Ex. 24).
As a result, Defendant extended the PIP an additional three weeks, until February 13,
2015. (Def.’s & Pl.’s Stmt. at ¶ 153).
On or about March 18, 2015, Romero met with Plaintiff, with Lambert attending by
telephone. ( Def.’s & Pl.’s Stmt. at ¶ 214). Romero told Plaintiff there had been a customer
complaint from St. Luke’s Hospital and Medtronic was terminating her employment because part
of her PIP was not having any customer complaints. (Def.’s & Pl.’s Stmt. at ¶ 215). Plaintiff
concedes that as of March 18, 2015, she had not met all of the objective requirements of the PIP.
(Def.’s & Pl.’s Stmt. at ¶ 216). As of March 18, 2015, Plaintiff had not achieved 100% of her
minimum quota for Disposables (she was tracking at 93.2% for FY 2015) or ENT Core (she was
tracking 84.1% for the year). (Def.’s & Pl.’s Stmt. at ¶ 219).
Thereafter, Plaintiff filed this action against Medtronic.
During her deposition in this action, Plaintiff testified that Bonner was the only
individual who harassed her or subjected her to unwelcome conduct. (Pl.’s Dep. at 99-100).
When asked to identify the harassment of a sexual nature that she had suffered from Bonner,
Discussion of my breasts and requesting pictures – I’m sorry, asking for pictures
of my breasts and discussing my breasts.
And you mentioned earlier about the alleged request for pictures of your
breasts, but I don’t think you mentioned that he discussed your breasts
What discussions, if any, did Mr. Bonner have with you regarding
He just asked to see them, send pictures of them, they look great since I
(Pl.’s Dep. at 100-101). Plaintiff testified that those comments happened more than once,
although she cannot recall how many times. Plaintiff never reported any of those comments to
Human Resources or any one else at Medtronic. (Id. at 89, 91 &101). Plaintiff testified that the
comments began in May of 2013 but that no further comments were made after her April 2014
complaint (of other matters) to Human Resources. (Id. at 101).
STANDARD OF DECISION
Summary judgment will be granted where there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact
exists where “the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.
The Court “must view the evidence, all facts, and any inferences that may be drawn from
the facts in the light most favorable to the non-moving party.” Skousen v. Brighton High Sch.,
305 F.3d 520, 526 (6th Cir. 2002). “The court’s duty to view the facts in the light most
favorable to the nonmovant does not require or permit the court to accept mere allegations that
are not supported by factual evidence.” Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th
Cir. 2009). “This is so because the nonmovant, in response to a properly made and supported
motion for summary judgment, cannot rely merely on allegations but must set out specific facts
showing a genuine issue for trial.” Id.
In its Motion for Summary Judgment, Defendant seeks summary judgment as to all three
of Plaintiff’s claims.
Plaintiff’s “Sex-Plus” Discrimination Claim, Asserted In Count I
Michigan’s ELCRA prohibits employers to “[f]ail or refuse to hire or recruit, discharge,
or otherwise discriminate against an individual with respect to employment, compensation, or a
term, condition, or privilege of employment, because of religion, race, color, national origin, age,
sex, height, weight, or marital status.” Mich. Comp. Laws § 37.2202(1)(a).
It is well established that a plaintiff may establish a discrimination claim under the
ELCRA using either direct evidence or circumstantial evidence. Here, Plaintiff contends that
she has direct evidence and, alternatively, that she withstands summary judgment under the
circumstantial evidence approach.
“Direct evidence” is “evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions.” Hazle v. Ford Motor
Co., 464 Mich. 456, 462 (2001). “Consistent with this definition, direct evidence of
discrimination does not require a factfinder to draw any inferences in order to conclude that the
challenged employment action was motivated at least in part by prejudice against members of
the protected group. Nguyen, 229 F.3d at 563 (noting that a ‘facially discriminatory employment
policy or a corporate decision maker’s express statement of a desire to remove employees in the
protected group is direct evidence of discriminatory intent.’).” Johnson v. Kroger Co., 319 F.3d
858, 865 (6th Cir. 2003).
Here, Plaintiff claims that she has such direct evidence to support her sex discrimination
claim. As the direct evidence that her sex was a motivating factor in her having been placed on a
PIP on December 5, 2014, and later terminated on March 18, 2015, Plaintiff identifies the single
mother comments that Bonner made to her during the time period from May through October of
2012. Plaintiff alleges that, during that time period, Bonner made comments to her about being a
single mother and whether she had the right job for a single mother, that maybe it was time for
her to look for another job, that this was a hard job as a single mother, and that maybe she wasn’t
cut out to do sales as a single mother. (Def.’s & Pl.’s Stmts. at ¶ 80).
In support of her argument that those comments constitute direct evidence of sex
discrimination, Plaintiff directs the Court to a single case, Lees v. Thermo Electron Corp., 2008
WL 4146375 (S.D. Ohio 2008). Lees is a non-binding, unpublished decision by a district court
in the Southern District of Ohio that involved an age discrimination claim under the ADEA and
an Ohio statute – not a sex discrimination claim under the ELCRA. (See Pl.’s Br. at 2).
Defendant has identified a number of cases wherein alleged direct evidence was not
found to be direct evidence because it does not require the conclusion, without any inferences,
that the challenge action was motivated by discriminatory animus.
Rock v. T.N.H.D. Partners also involved “single mother” comments. In that case, the
district court considered whether “single mother” comments constituted direct evidence that the
plaintiff was not given two different jobs she applied for with her current employer. Rock v.
T.N.H.D. Partners, LLC, 833 F.Supp.2d 802 (M.D. Tenn. 2011). When she expressed interest in
applying for the first position, the hiring manager told the plaintiff that she had “gravy train
hours” in her current job “because she was a single mom.” Id. at 809. When the plaintiff
expressed that she was interested in a different position that became available later, the person in
charge of hiring said “You are already handicapped because you are a single mom. Don’t you
have more important things to take care of?” Id. at 810. The district court concluded that the
comments did not constitute direct evidence, explaining:
Here, the Court concludes that Hastings’s and Wall’s alleged statements are too
abstract to constitute direct evidence of discrimination and require an inference.
See Philipsen v. University of Michigan Bd. of Regents, No. 06–CV–11977–DT,
2007 WL 907822, at *5 (E.D.Mich. March 22, 2007) (the question “I’ve got an
offer for you. Before I give it to you, I have a question.... Are you sure you don’t
want to stay at home to be with your children?” was not direct evidence of
discrimination on the basis of plaintiff's status as a mother with young children as
the question “does not necessarily evince a discriminatory intent” nor does it
“compel a reasonable factfinder to conclude that Plaintiff's job offer was
rescinded for discriminatory reasons.”) (emphasis in original); Malone v. USA
Today, 348 F.Supp.2d 866, 873 (E.D.Mich. 2004) (supervisor’s alleged question
as to whether the plaintiff would be coming back to work after maternity leave
and alleged statement, “Why don’t you take some time, think about what kind of
job you will be able to do or will make you happy, think about it” were not direct
evidence of pregnancy discrimination); Fuller v. GTE Corporation/Contel
Cellular, Inc., 926 F.Supp. 653, 656 (M.D.Tenn. 1996) (finding no direct
evidence of gender discrimination in a “sex-plus” discrimination action where
supervisor repeatedly made negative comments to plaintiff about plaintiff’s
children and told plaintiff she needed to get her priorities straight and that her job
Id. at 816.
The Court agrees with Defendant that this is not one of those relatively rare instances
where direct evidence of discrimination exists. That is because none of Bonner’s comments
require the conclusion – without any inferences – that Defendant placed Plaintiff on a PIP in
2014, terminated her in 2015, or took any other adverse actions because Plaintiff was a female
with children. As a result, this Court must consider whether Plaintiff can withstand summary
judgment under the alternative, circumstantial evidence approach.
Defendant’s motion raises several issues regarding both the prima facie case and pretext
showings required under the circumstantial evidence approach.
Prima Facie Case
The parties agree that in order to establish a prima facie case of sex discrimination under
the ELCRA, Plaintiff must show that: 1) she is a member of the protected class; 2) she suffered
an adverse employment action; 3) she was qualified for the job; and 4) the adverse employment
action occurred under circumstances giving rise to an inference of unlawful discrimination.
Circumstances give rise to an inference of discrimination when the plaintiff was replaced
by someone outside of the protected class or was treated differently than similarly situated
employees outside of the protected class. See, e.g., Hazle v. Ford Motor Co., 464 Mich. 456,
463 (2001); Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004).
While Defendant acknowledges that Plaintiff is a member of the protected class and that
her termination is an adverse action, there are numerous disputes concerning Plaintiff’s ability to
establish a prima facie case. The Court need not address them all, however, because it concludes
that Plaintiff has failed to establish the fourth element of a prima facie case.
In this case, it is undisputed that Plaintiff was not replaced by someone outside of the
protected class of females. That is because Plaintiff was not replaced, but rather, her territory
was assumed by existing ASMs, who are female. (See Romero Affidavit).
Thus, Plaintiff attempts to meet the fourth element by showing that she was treated
differently than similarly situated employees outside of the protected class.
To qualify as “similarly-situated,” the employee to whom the comparison is drawn “must
have dealt with the same supervisor, have been subject to the same standards and 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.” Hollins v. Atlantic Co.,
Inc., 188 F.3d 652, 659 (6th Cir.1999) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th
Here, Plaintiff asserts her ELCRA sex discrimination claim under a “sex-plus” theory.
As explained by the Sixth Circuit in Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428 (6th Cir.
“Sex-plus” discrimination exists when a person is subjected to disparate treatment
based not only on her sex, but on her sex considered in conjunction with a second
characteristic. See e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91
S.Ct. 496, 27 L.Ed.2d 613 (1971). Under a “sex-plus” theory of discrimination, it
is impermissible to treat men characterized by some additional characteristic more
or less favorably than women with the same added characteristic.
Id. at 438 n.8.
Defendant asserts that Plaintiff cannot establish the fourth element as to Plaintiff’s
“sex-plus” discrimination claim because she cannot show that she was treated differently than
any similarly-situated nonprotected employees. That is, Defendant contends that Plaintiff’s sexplus claim fails because she cannot identify any male comparators (single or married) with
children who were treated differently than Plaintiff. Defendant directs the Court to Judge Robert
Cleland’s decision in Philipsen v. University of Michigan Board of Regents, 2007 WL 907822
(E.D. Mich. 2007).
Here, like the situation presented in Philipsen, the second characteristic identified in
Plaintiff’s Complaint is having children (see Pl.’s Compl. at ¶ 17, alleging that the
“sexual/gender harassment to which Plaintiff was subjected by her male supervisor included the
male supervisor questioning whether or not a woman with children was capable of performing in
her position,” and ¶ 30, alleging the unwelcome “comments that a woman with children was not
capable of performing her job responsibilities.”) (emphasis added).
In Philipsen, the defendant sought summary judgment because the female plaintiff could
not show any disparate treatment of a male comparator and the plaintiff sought to satisfy her
burden by showing that females without young children were treated differently than females
with young children. The district court noted that sex-plus discrimination “arises when an
employer discriminates against a person based not only on her sex, but on her sex considered in
combination with another characteristic, such as parental status.” Id. at *6. The district court
noted that courts are split over the issue of whether “the proper comparator may only include a
person outside of the protected class who has the same ‘plus characteristic’ as the plaintiff (in
this case, a male with young children) or whether the comparator may include any person (male
or female) who lacks the ‘plus’ characteristic (in this case, a female without young children).”
Id. The court noted that the Sixth Circuit has not directly addressed the issue and that the parties
had both cited nonbinding cases supporting their respective positions. Having reviewed that
caselaw, the district court was persuaded by those cases “that require the comparator to be
outside of the protected class.” Id.
This Court finds the reasoning and conclusion in Philipsen persuasive. The Philipsen
In Fuller v. GTE Corporation/Contel Cellular, Inc., 926 F.Supp. 653
(M.D.Tenn.1996), the court granted summary judgment to the defendant where
the plaintiff had not produced any evidence “to indicate that women were treated
differently from men or that women with young children were treated differently
from men with young children.” Id. at 658. The court stated that “[e]ven in the socalled ‘sex plus’ discrimination analysis, Plaintiff must first show that she was
treated differently from men.” Id. Defendant also cites Fisher v. Vassar College
70 F.3d 1420 (2nd Cir.1995), where the court held that “[t]o establish that [the
defendant] discriminated on the basis of sex plus marital status, plaintiff must
show that married men were treated differently from married women.” Id. at
1446. Similarly, the Tenth Circuit has held that “[t]o be actionable, however,
gender-plus discrimination must be premised on gender.” Coleman v. B-G
Maintenance Management of Colorado, Inc., 108 F.3d 1199, 1203 (10th
Cir.1997). The court continued:
As one scholar has artfully explained, Title VII contemplates
gender-plus claims because when one proceeds to cancel out the
common characteristics of the two classes being compared ( [e.g.,]
married men and married women), as one would do in solving an
algebraic equation, the cancelled-out element proves to be that of
married status, and sex remains the only operative factor in the
Lex K. Larson, Employment Discrimination § 40.04, at 40-12 (2d
ed.1996) (emphasis added). Thus, although the protected class
need not include all women, the plaintiff must still prove that the
subclass of women was unfavorably treated as compared to the
corresponding subclass of men.
Id. at 1203.
The court is persuaded by the reasoning of Fuller, Fisher and Coleman. As the
Fuller court stated:
Discrimination against married women [or women with young children]
constitutes discrimination on the basis of sex only if a different standard, i.e., the
marital [or parental] status of the person, has been applied to men and women.
Absent proof of the standard applied to men, obviously [P]laintiff [ ] ha[s] not
established that such standard differs from the one applied to women.
Fuller, 926 F.Supp. at 658. To allow Plaintiff to argue that Defendant
discriminated against her as compared to women without young children would
turn this gender discrimination case into a parental discrimination case. Instead,
the court agrees with Defendant that “gender-plus plaintiffs can never be
successful if there is no corresponding subclass of members of the opposite
gender .” Coleman, 108 F.3d at 1203.
Id. at 8 (emphasis added).
The emphasized line above concisely explains why Plaintiff’s position should be
rejected. Again, “[u]nder a “sex-plus” theory of discrimination, it is impermissible to treat men
characterized by some additional characteristic more or less favorably than women with the same
added characteristic.” Derungs, supra. If Plaintiff is unable to show she was treated less
favorably than men without the additional characteristic of having children, then she does not
have a sex plus discrimination claim. If Plaintiff were to allowed to take her sex discrimination
claim to trial by showing that she was treated differently than a female who does not have
children, then the claim she would present to the jury would be a parental discrimination claim –
not a gender discrimination claim.
The Court concludes that because Plaintiff has failed to produce any evidence that
similarly-situated male comparators were treated more favorably, Plaintiff has not established
the fourth element of a prima facie case. As a result, Defendant is entitled to summary judgment
as to Plaintiff’s sex-plus discrimination claim, asserted in Count I.3
Plaintiff’s Hostile Work Environment Based On Sexual Harassment Claim Under
The ELCRA, Also Asserted In Count I
Michigan’s “ELCRA prohibits employers from discriminating against employees based
on sex, which includes sexual harassment. See Mich. Comp. Laws § 37.2102; Chambers v.
Trettco, Inc., 463 Mich. 297, 614 N.W.2d 910, 915 (2000).” Kalich v. AT&T Mobility, Inc., 679
F.3d 464 (6th Cir. 2012). “Sexual harassment that substantially interferes with an individual’s
employment is referred to as ‘hostile work environment’ harassment.” Id. That is what Plaintiff
Even if the Court were to accept Plaintiff’s argument that female employees without the
plus characteristic of having children could be considered comparators, the Court concludes that
Plaintiff has still not presented sufficient evidence to survive summary judgment. To qualify as
“similarly-situated,” the employee to whom the comparison is drawn “must have dealt with the
same supervisor, have been subject to the same standards and 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.” Hollins, supra. Plaintiff has not even identified who the
similarly-situated female ASMs without children were, much less presented evidence to show
that they were treated more favorably (ie., not put on a PIP or terminated) despite having
engaged in the same or similar conduct (not meeting objective sales goals and receiving
Prima Facie Case
“To establish a prima facie case of hostile work environment based on sexual
harassment,” Plaintiff is required to show that: 1) she belonged to a protected group; 2) she was
“subjected to communication or conduct on the basis of sex;” 3) she was subjected to
“unwelcome sexual conduct or communication;” 4) the unwelcome conduct or communication
was intended to or did substantially interfere with Plaintiff’s employment or created an
intimidating, hostile, or offensive work environment; and 5) respondeat superior. Kalich, 679
F.3d at 470.
Defendant’s motion asserts that Plaintiff cannot establish a prima facie case because
Plaintiff concedes that she never reported the only sexually offensive conduct she complains of
and, therefore, she cannot establish respondeat superior. Defendant correctly notes that under
the ELCRA, an employer can only be held liable for hostile work environment sexual
harassment if the employer has either actual or constructive notice of the alleged harassment and
fails to take prompt and appropriate remedial action. See, e.g., Chambers, 463 Mich. at 312;
Kalich, 679 F.3d at 474.
Defendant then directs the Court to Plaintiff’s deposition, wherein she testified that: 1)
the only harassment she suffered was from Bonner; 2) the only conduct of a sexual nature that
she identified was Bonner having discussed her breasts and asking to see pictures of them after
Plaintiff had breast implants; 3) she never reported any of those comments to Human Resources;
and 4) in any event, no further comments were made after Plaintiff made her April 2014
Plaintiff has not asserted a quid pro quo sexual harassment claim.
complaint (of other matters) to Human Resources. (Pl.’s Dep. at 99-101).
In response, Plaintiff’s brief first asserts that her harassment claim need not be based
upon conduct that is sexual in nature. (Pl.’s Br. at 19). To support that argument, Plaintiff
directs the Court to cases dealing with Title VII – not the ELCRA. Plaintiff’s hostile work
environment claim was brought under the ELCRA alone and it requires the harassment to be
sexual in nature, as explained in Kalich:
In addition to the requirement that he was singled out because of his gender,
Kalich was also required to present evidence that he was “subjected to
unwelcome sexual conduct or communication.” Haynie, 664 N.W.2d at 133. This
element is derived from the language in § 37.2103(i) of ELCRA, which states that
“[s]exual harassment means unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct or communication of a sexual
nature....” Id. The Michigan Supreme Court has held that “actionable sexual
harassment requires conduct or communication that inherently pertains to sex.”
Corley v. Detroit Bd. of Educ., 470 Mich. 274, 681 N.W.2d 342, 345 (2004)
(defining “sexual nature”); see also Haynie, 664 N.W.2d at 135–36; Barrett, 628
N.W.2d at 74–75. Discriminatory conduct that is gender-based but not sexual in
nature does not constitute sexual harassment. Haynie, 664 N.W.2d at 135.
Kalich, 679 F.3d at 471-72. Thus, to the extent that Plaintiff suggests that she can base her
hostile work environment claim on Bonner’s alleged “single mother” comments, that argument
fails because those alleged comments were not of a sexual nature.
Next, Plaintiff does not dispute that she failed to report Bonner’s alleged comments about
her breasts, but suggests that she can proceed to trial with a hostile work environment claim
based upon her having reported Bonner’s one “bathroom wall comment” to Human Resources:
Defendant argues Plaintiff has not reported any such conduct as she had not
reported the requests from Bonner, her supervisor, to see and receive photographs
of her breasts. However, Plaintiff did report the comments Bonner made to a coworker regarding Plaintiff’s number being on a bathroom wall. Specially, Bonner
told a new Medtronic representative at the University of Michigan, when he asked
Plaintiff for a business card, “Oh, don’t worry about it, if you want to find her
number, it’s on the bathroom wall at U of M.” (Ex. 1 - p 112). These actions and
report could allow a jury to find a hostile work environment.
(Pl.’s Br. at 20).
The Court rejects Plaintiff’s argument and shall grant summary judgment in favor of
Defendant as to this claim. That one comment, while inappropriate, is not enough to support a
hostile work environment claim. Moreover, Plaintiff cannot establish respondeat superior
because no further comments were alleged to have been made by Bonner (or anyone else) after
Plaintiff reported that single comment to Human Resources in April of 2014.
Plaintiff’s Retaliation Claims, Asserted in Count II
In Count II, Plaintiff asserts a retaliation claim under both the ELCRA and Title VII.
Both Title VII and the ELCRA prohibit retaliation against an employee who has engaged
in protected conduct under the statute. Retaliation claims under Title VII and the ELCRA are
largely the same, and are analyzed under the familiar McDonnell Douglas burden-shifting
paradigm when the plaintiff lacks direct evidence, although there are some differences.5
A plaintiff alleging retaliation in violation of the ELCRA or Title VII must establish the
following elements of a prima facie case: 1) the plaintiff engaged in protected conduct; 2) that
this was known by the defendant; 3) that the defendant took an employment action adverse to the
plaintiff; and 4) that there was a causal connection between the protected activity and the adverse
There is a difference between the two statutes (Title VII and the ELCRA) with respect to
the fourth element, causation. To establish causation under the ELCRA, the plaintiff must only
show that her participation in the protected activity was a “significant factor” in the employer’s
adverse action. In re Rodriguez, 487 F.3d at 1011. Title VII retaliation claims, on the other
hand, must be proved according to traditional principles of “but-for-causation,” which require
proof that the unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer. Frazier, supra, at 451.
employment action. See In re Rodriguez, 487 F.3d 1001, 1011 (6th Cir. 2007); Frazier v.
Richland Public Health, 685 F. App’x 443, 450 (6th Cir. 2017).
The “burden of establishing a prima facie case in a retaliation action is not onerous, but
one easily met.” EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997).
Prima Facie Case
Here, it is undisputed that Plaintiff engaged in protected conduct under both the ELCRA
and Title VII by virtue of complaining to Human Resources about Bonner. There also does not
appear to be any dispute as to the second element, that Defendant, and Bonner in particular, was
aware of Plaintiff’s protected activity. There are disputes between the parties as to the third and
Defendant acknowledges that Plaintiff’s termination is an adverse action, as to both
Plaintiff’ discrimination and retaliation claims. Plaintiff claims, however, that she also suffered
additional adverse actions, particularly with respect to her retaliation claims, which have a lower
bar for what constitutes an adverse action.
A plaintiff’s burden of establishing a materially adverse employment action is “less
onerous” in the retaliation context than in the anti-discrimination context. Laster v. City of
Kalamazoo, 746 F.3d 714, 731 (6th Cir. 2014). To establish the third element, plaintiff must
show “that a reasonable employee would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. (quoting Burlington Northern).
Moreover, the Sixth Circuit has stressed that in analyzing the significance of any given
act of retaliation, “context matters,” explaining:
‘The real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully
captured by a simple recitation of the words used or the physical acts
performed.’” Id. at 69, 126 S.Ct. 2405 (quoting Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 81–82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). “A
supervisor’s refusal to invite an employee to lunch is normally trivial, a
nonactionable petty slight. But to retaliate by excluding an employee from a
weekly training lunch that contributes significantly to the employee’s professional
advancement might well deter a reasonable employee from complaining about
discrimination.” Id. at 82, 118 S.Ct. 998 (citing 2 EEOC 1998 Manual § 8, p.
8–14). “An act that would be immaterial in some situations is material in others.”
Id. (citation omitted). “This more liberal definition permits actions not materially
adverse for purposes of an anti-discrimination claim to qualify as such in the
retaliation context.” Michael, 496 F.3d at 596 (holding that placing employee on
brief paid administrative leave and 90–day performance plan meet “relatively low
bar” of materially adverse action for purpose of retaliation claim); see also
Halfacre v. Home Depot, U.S.A., Inc., 221 Fed.Appx. 424, 432 (6th Cir. 2007)
(remanding for reconsideration, in light of Burlington Northern, whether
assigning the plaintiff a poor performance-evaluation score constituted an adverse
employment action for the purpose of setting forth a retaliation claim).
Laster, 746 F.3d at 731. Thus, for example, being subjected to heightened scrutiny and being
denied training opportunities that are provided to others, may constitute materially adverse
actions. Id. So can being placed on a PIP that threatens termination and having job duties or
accounts reassigned. See, eg., Frazier, 685 F. App’x at 454-55.
Although in her complaint and deposition Plaintiff asserted that Defendant retaliated
against her in several ways in addition to her termination (e.g., by Bonner reassigning her
accounts, not providing her with drive-along training opportunities, placing her on a PIP,
soliciting and encouraging heightened scrutiny of her performance from her customers),
Defendant’s motion challenging the retaliation claim proceeds as if the only alleged adverse
action is Plaintiff’s termination. (See Def.’s Br. at 20). It is not, and the Sixth Circuit has made
clear that you need to consider each alleged adverse action separately. See, e.g. Benison v. Ross,
765 F.3d 649, 659 (6th Cir. 2014) (noting that it considers “each alleged adverse action”
Because Defendant’s motion focuses on termination alone, Defendant’s motion does not
explain why the evidence pertaining to those other alleged adverse actions is not sufficient to
create a genuine issue of material fact regarding whether or not Plaintiff was subject to
materially adverse actions that would dissuade a reasonable employee from making a complaint
The Court concludes that an issue of fact exists as to the third element of a prima facie
case of retaliation.
To establish a causal connection between the protected activity and the adverse
employment action, a plaintiff must present evidence sufficient to raise the inference that her
protected activity was the likely reason for the adverse action. In re Rodriguez, 487 F.3d at
1011; see also EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997) (explaining
that “at the prima facie stage the burden is minimal, requiring the plaintiff to put forth some
evidence to deduce a causal connection between the retaliatory action and the protected
“One way by which a plaintiff can demonstrate a causal connection is to show close
temporal proximity between the adverse employment actions and the protected activity.” Taylor
v. Geithner, 703 F.3d 328, 339 (6th Cir. 2013). In addition, evidence that the plaintiff
experienced a retaliatory atmosphere after making a complaint has been found to support an
inference of retaliation for purposes of the required causal connection. See, eg., Imwalle v.
Reliance Medical Prods., Inc., 515 F.3d 531, 550-51 (6th Cir. 2008).
Here, Defendant’s motion asserts that “no rational trier of fact could conclude that a
causal connection exists between the complaint Plaintiff made about Bonner to Medtronic
Human Resources in April 2014 and her termination for failing to successfully complete the PIP
in March 2015.” (Def.’s Br. at 21). Defendant stresses that there is an eleven month gap
between Plaintiff’s April 2014 complaint to Lambert and her termination in March of 2015.
But Defendant’s motion ignores the other alleged materially adverse actions, and their
timing, and other testimony from Plaintiff that could support an inference of retaliation.
Plaintiff complained about Bonner to Lambert on April 17, 2014. Less than a week later, on
April 22, 2014, Bonner called Plaintiff and told her that she was not to contact Human
Resources, or anyone above him, again because it made Bonner look bad. (Pl.’s Dep. at 14345). The next month, May of 2014, Medtronic hired another ASM for Plaintiff’s territory, who
lived seven minutes away from Plaintiff and Bonner told Plaintiff that he was deciding how to
divide up the sales territory. (Pl.’s Dep. at 95-98). Plaintiff then had one of her oldest accounts
taken away, which increased her drive time and left her with only two accounts in close
proximity to her home. (Pl.’s Dep. at 95-98). Plaintiff then complained to Human Resources
about Bonner again, this time asserting that the reassignment was done in retaliation for her
having previously complained about Bonner. Sometime in November of 2014, Bonner was one
of two decision-makers who decided to place Plaintiff on PIP. (Bonner Affidavit at ¶ 34).
In December of 2014, Plaintiff was put on a PIP that threatened termination. In March of 2015,
Plaintiff was terminated, before the stated end date of the PIP.
Viewing that evidence in the light most favorable to Plaintiff, the Court concludes that
Plaintiff has created a genuine issue of material fact as to whether there is a causal connection
between her protected activity and the various adverse actions.
Once Plaintiff has met her burden of establishing a prima facie case of retaliation, the
burden shifts to Defendant to provide a legitimate, non-retaliatory reason for the challenged
In its motion, Defendant asserts that Plaintiff cannot establish that its legitimate, nondiscriminatory reason for terminating Plaintiff is a pretext for retaliation. (Def.’s Br. at 22). So
again, Defendant’s motion proceeds as if the only adverse action alleged by Plaintiff is her
termination, when that is not the case.
Where a case is at the summary judgment stage, a plaintiff seeking to prove retaliation
via indirect evidence must submit sufficient evidence from which a reasonable jury could
conclude that the defendant’s nondiscriminatory reasons for its challenged actions are a pretext
for unlawful discrimination. Wexler v. White Fine Furniture, 317 F.3d 564, 576 (6th Cir. 2003).
A plaintiff can generally show pretext in three ways: 1) that the proffered reasons had no
basis in fact, 2) that the proffered reasons did not actually motivate the employer’s action, or 3)
that they were insufficient to motivate the employer’s action. Romans v. Mich. Dep’t of Human
Servs., 668 F.3d 826, 839 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400
(6th Cir. 2009)). The ultimate inquiry is did the employer take the challenged actions against the
plaintiff “for the stated reason or not?” Chen, 580 F.3d at 400 n.4.
With respect to the second kind of showing, the plaintiff argues that the sheer weight of
the circumstantial evidence of retaliation makes it more likely than not that the employer’s
explanation is a pretext, or coverup. Here, Plaintiff asserts that she has produced evidence to
show that her performance did not actually motivate Defendant’s conduct of realigning her
territory and accounts, placing her on a PIP, and ultimately terminating her. (Pl.’s Br. at 18).
Plaintiff’s position as to pretext in this case is a bit different than in most cases. That is
because Defendant has presented evidence to show that it had objective reasons to terminate
Plaintiff – because she had customer complaints and was below quota on sales. Plaintiff’s
pretext argument is that only became a problem for Defendant after Plaintiff complained to
Human Resources about Bonner.
One way of presenting circumstantial evidence of retaliation is by showing that the
plaintiff was treated differently before and after having engaged in the protected activity. See,
eg., In re Rodriguez, 487 F.3d at 1011.
Plaintiff’s position is that before she complained to Human Resources about Bonner,
there had been some complaints from customers, but Bonner did not take any official action
about them or follow up with customers to get complaints documented. For example, Plaintiff
directs the Court to a May 9, 2014 email from a customer discussing Plaintiff and whether she
was going to be reassigned to his account in the alignment. (Pl.’s Ex. 6). In that email, the
customer says that he had previously talked to Bonner about coverage issues with her but that
Bonner “never followed up with a phone call, as [the customer] had requested.” (Id.). And
despite having knowledge of some complaints from customers, Plaintiff was never written up or
disciplined during the more than ten years she worked for Medtronic, for customers complaints
or anything else. In addition, it appears undisputed that Plaintiff had not been meeting her sales
quota in the period before April of 2014, but had never been written up for that or placed on a
PIP. (See Def.’s Stmt. at ¶ 132, stating that Plaintiff reported to Bonner for 10 quarters (during
time period from May of 2012 through her termination) and that Plaintiff did not achieve her
sales quota in 9 of 10 of those quarters).
Plaintiff argues that after she complained about Bonner in April of 2014, however, that
all changed. Soon after her complaint, Bonner told Plaintiff not to make any reports to Human
Resources in the future because it made him look bad – which by itself could be viewed as
circumstantial evidence that Bonner was upset about her protected activity. Within a month,
Defendant hired a new sales representative and gave her accounts from Plaintiff’s assigned
territory, including her oldest and those close to Plaintiff’s home, increasing her drive time and
making it more difficult to make her quota. Bonner told Plaintiff that he determined how to
divide the accounts.
Bonner also began soliciting and documenting customer complaints within a month of
her complaint to Human Resources. Although Bonner had previously told Plaintiff, back in
November of 2013, that she would received a formal warning letter if another complaint was
received, no such warning letter was given. Rather, Plaintiff was placed directly on a PIP that
threatened termination. And although it appears that Plaintiff was below quota for some time
before complaining to Human Resources, without being written up or placed on a PIP, when she
continued to remain below quota after complaining to Human Resources she was placed on a PIP
and then ultimately terminated.
Construing this collective evidence in the light most favorable to Plaintiff, a reasonable
jury could conclude that Plaintiff’s performance did not actually motivate Defendant to take the
adverse actions taken against her and that those actions were taken in retaliation for her having
complained to Human Resources about Bonner.
CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that Defendant’s Motion for Summary
Judgment is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the
extent that Defendant is entitled to summary judgment in its favor as to Count I. The motion is
DENIED in all other respects. Accordingly, Count II shall proceed to trial.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: October 23, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record on
October 23, 2017, by electronic and/or ordinary mail.
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