Childers v. General Motors Company LLC

Filing 120

ORDER granting in part and denying in part 88 Motion for Summary Judgment - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENISE CHILDERS,
Plaintiff,

Case No. 16-14428

v.

Honorable Nancy G. Edmunds

GENERAL MOTORS LLC,
Defendant.
________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [88]
Plaintiff Denise Childers (“Plaintiff”) brought this lawsuit against her employer,
Defendant General Motors LLC (“Defendant” or “GM”), alleging that it created a hostile
work environment and discriminated and retaliated against her on the basis of her race
and age in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age
Discrimination in Employment Act (“ADEA”), and 42 U.S.C. § 1981 (“§ 1981”).1 (Dkt.
69.) Plaintiff also alleges that Defendant failed to make reasonable accommodations
under the Americans with Disabilities Act (“ADA”). (Id.) The matter is before the Court
on Defendant’s motion for summary judgment on all claims. (Dkt. 88.) Plaintiff filed a
response, and Defendant filed a reply. (Dkts. 110, 118, 119.) The Court heard oral
arguments on the motion on January 9, 2019. For the reasons discussed below, the
Court GRANTS IN PART and DENIES IN PART Defendant’s motion.

1

Originally, Plaintiff also asserted a claim pursuant to Michigan’s Elliott-Larsen
Civil Rights Act. (Dkt. 4, Pg ID 33.) However, the Court declined to exercise
supplemental jurisdiction over that claim and entered an order dismissing it. (Dkt. 10.)
Plaintiff’s claim pursuant to § 1981 was added in her Second Amended
Complaint after she sought, and the Court granted, leave to file it. (See Dkt. 68.)
1 

I.

Background
Plaintiff began working for GM in 1989 and has been a Level 7 Lead Corporate

Auditor in GM’s internal audit department, which is known as General Motors Audit
Services (“GMAS”) from 2005 to the present. (See dkt. 110-2, Pg ID 4287.) In January
2013, GM hired Dottie Appleman as a manager in GMAS. (Dkt. 110-3, Pg ID 4296.) In
July 2013, Appleman gave Plaintiff positive feedback in her 2013 Commitment and
Accountability Partnership (“CAP”). (See dkt. 110-4, Pg ID 4368-69.) She also
suggested “improv[ing] professional flexibility, understanding, [and] adaptability” and
“establish[ing] ways to work collaboratively.” (Id. at Pg ID 4369.) Appleman assigned
Plaintiff to replace a different auditor as the lead auditor on the 2013 Global Business
Services Audit, which was a large and complex audit. (Dkt. 110-3, Pg ID 4308.)
In July 2013, Plaintiff confronted Tom Yoder (a GMAS director) regarding a racist
comment made about a new African-American employee by the name of Chase Collins.
(Dkt. 110-5, Pg ID 4411.)
Crystal Gonzalez was hired by GM in August 2013 as a senior auditor. (Dkt.
110-9, Pg ID 4532.) Gonzalez had previously worked with Appleman. (Id. at Pg ID
4534.) In September 2013, Plaintiff verbally complained to Appleman that Gonzalez
and some of their co-workers were becoming intoxicated while traveling with the team
and engaging in non-work-related activity during work hours. (Dkt. 110-5, Pg ID 4392.)
Her co-workers had also told her that she should retire soon and that people her age
were not interested in devices such as the Fitbit. (Id. at Pg ID 4393.) On one occasion,
Gonzalez was talking about Plaintiff nearing retirement age in front of Appleman, who
responded by stating that Plaintiff should work for another ten years. (Id.)

2 

In November 2013, Yazmin Wong began working for GM as a lead auditor in
GMAS. (Dkt. 110-15, Pg ID 4578-79.) She too had previously worked with Appleman.
(Id. at Pg ID 4581.) Appleman appeared to be friends with both Gonzalez and Wong.
In January 2014, Appleman gave Plaintiff a positive performance review in her
2013 Year-End review, which stated that Plaintiff “achieves expectations” for behaviors
and performances. (Dkt. 110-4, Pg ID 4371, 4373.) The review noted that the audit
Plaintiff had been leading was not finished. (Id. at Pg ID 4371.) Appleman told Plaintiff
she would continue to be the lead on the GBS audit in 2014. (Dkt. 110-5, Pg ID 4404.)
In the summer of 2014, Wong played a video Plaintiff felt was “nasty” and
“raunchy” in front of her; Wong told Plaintiff that “these are your people.” (Id. at Pg ID
4400.) Plaintiff told Wong that the video was inappropriate and that she should turn it
off. (Id.) Plaintiff also testified that Gonzalez made comments such as “black people
are always late” or “black people do meth.” (Id. at Pg ID 4408.)
Plaintiff later complained to Appleman about the inappropriate video and about
the behavior of both Wong and Gonzalez. (Id. at Pg ID 4401.) Plaintiff felt that Wong
and Gonzales were “like a bunch of roaming high school bullies.” (Id.) She also
complained to Appleman that Collins was fired for doing the same things others were
doing.2 (Id. at Pg ID 4402.)
In July 2014, Appleman gave Plaintiff a lower performance review, stating that
she only “minimally” met expectations for business results and “partially” met
expectations for leadership behaviors. (Dkt. 110-17, Pg ID 4654.) There was a note
regarding the need to work on her interpersonal “savvy/flexibility.” (Id. at Pg ID 4659.)

2

Collins had been fired in May of 2014. (Dkt. 110-5, Pg ID 4402.)
3 

On October 1, 2014, a disturbing incident allegedly occurred. Plaintiff was
seated in a conference room when Wong and Gonzalez entered. (Dkt. 110-5, Pg ID
4450.) Wong asked Plaintiff if she was ready for lunch. Plaintiff responded that she
needed five to ten minutes. According to Plaintiff, at that point, Wong told her to get up
and punched her 6-8 times in the neck. (Id. at Pg ID 4451.) Plaintiff cried “don’t touch
me,” leading Wong to point her finger in Plaintiff’s face and taunt her by mimicking her
“don’t touch me” cries. She mimicked her the next day as well. (Id. at Pg ID 4454.)
Other witnesses described the incident differently. They stated that Wong “tapped” or
“poked” Plaintiff. (See Dkt. 110-25, Pg ID 4702.)
Plaintiff informed Appleman of this incident via an instant message close to two
weeks later—on October 13, 2014. (Dkt. 110-21, Pg ID 4683.) Plaintiff testified that
she attempted to report the incident earlier but was told that Appleman was unavailable.
(Dkt. 110-5, Pg ID 4461.) Appleman asked Plaintiff to provide a typewritten account of
what took place. (Id. at Pg ID 4462.) Appleman also asked Wong to provide her with a
written summary of her own account of what transpired. (Dkt. 110-23, Pg ID 4688.)
Wong admitted to poking Plaintiff multiple times. (Id. at Pg ID 4687.)
On October 22, 2014, Appleman filed a formal report regarding Plaintiff’s
complaint with GM security. (Dkt. 110-24, Pg ID 4693.) Henry Jackson from GM
Security conducted an investigation regarding the October 1 incident. His conclusion
was that “it appears Wong did use her index finder to touch Childers on the back of her
shoulder.” (Id. at Pg ID 4702.) On February 18, 2015, Plaintiff was informed that the
investigation found “no evidence of wrong doing” on the part of Wong. (See Dkt. 11033, Pg ID 4764.)

4 

During October 2014, Plaintiff asked Appleman if she could work from home on
Tuesdays, but Appleman told her that she preferred her not to. (Dkt. 110-5, Pg ID
4475.) In February of 2015, Appleman asked human resources for permission to
terminate Plaintiff. (See dkt. 110-41, Pg ID 4805.) She was informed that because
Plaintiff had never been placed on a performance improvement plan (“PIP”), termination
was unwarranted and that “[i]n fact, a review of her CAP’s [sic] since 2010 provide that
at the worst, [Plaintiff] was inconsistent.” (Id.)
Plaintiff’s 2014 year-end review, which she eventually received in March of 2015,
stated that “[Plaintiff]’s professional credibility and capacity are low” and that she
“participated in disagreements at work. It will take a sincere effort and a lot of work for
[Plaintiff] to regain people’s trust again.” (Dkt. 110-17, Pg ID 4659, 4657.) The review
also stated that Plaintiff’s “actual output and work product is that of a lower level auditor
and generally does not perform at a lead auditor level a majority of her time . . . she is
not proactive and not a good time manager.” (Id. at Pg ID 4657.) Appleman also stated
that “[i]n response to [Plaintiff]’s inconsistent performance, management has assigned
[Plaintiff] to participate in audits as opposed to leading them.” (Id.)
Plaintiff alleges that on March 24, 2015, she requested 1.5 hours of leave time
for weekly medical appointments, but that request was denied and she was told she
would be required to take unpaid leave. (Dkt. 110-47.) Emails show that Plaintiff was
informed by human resources to contact the disability manager, who would decide
whether the leave time would be paid or unpaid. (See id.)
As a result of her unfavorable review for 2014, Plaintiff was placed on a PIP.
(See dkt. 110-48.) As a part of this PIP, Plaintiff was assigned to lead an audit. Initially,

5 

she received positive performance reviews for her work on the 2015 audit, but starting
in September 2015, she began to receive negative performance feedback. (See id. at
Pg ID 4847.) Management concluded in October of 2015 that because some of the
objectives in the PIP were not consistently met, Plaintiff would no longer be leading
audits. (Id. at Pg ID 4851.) However, because Plaintiff generally satisfied her PIP
goals, she was released from the PIP. (Id.)
Plaintiff alleges that she was set up to fail during the course of the PIP and that
Appleman had already decided that she did not want to assign her to lead audits, as
reflected by her statement in Plaintiff’s 2014 performance review. Plaintiff further
alleges that she was not given sufficient resources to successfully complete that audit.
Plaintiff did, however, take responsibility for some of the problems that arose during the
course of that audit. For example, in an email to her supervisor dated September 18,
2015, she stated: “FYI, the bottom line is that I take responsibility/am accountable for
the [audit], including deadlines missed, etc.” (Dkt. 88-3, Pg ID 2602.)
On January 28, 2016, Plaintiff filed her EEOC claim. (See dkt. 110-49.) In
February 2016, she assisted with a small project and received positive feedback. (See
dkt. 110-50, Pg ID 4856.) She alleges, however, that she was not given any audit
assignments until she went on disability leave in January of 2017.3 Moreover, she
alleges she was forced to scan documents and manually transfer electronic files,
despite requesting assignments. (See dkt. 110-54, Pg ID 4885.) She also requested to

3

This followed a cancer diagnosis. Her failure to accommodate claim under the
ADA, discussed below, relates to her health prior to this diagnosis.
6 

work from home for three half days during December 2016, but her supervisor denied
that request. (Dkt. 110-56, Pg ID 4895.)
Plaintiff alleges that she was denied a raise that all other Level 7 Lead Auditors
received in January of 2015 (except for one other employee who was also AfricanAmerican). Defendant concedes that Plaintiff did not receive a raise that year due to
her 2014 performance review but notes that she received a TeamGM bonus. (See dkt.
118-1, Pg ID 5514.) Defendant also notes that the other African-American employee
who did not receive a raise that year was ineligible for one because she was at the top
of the salary range for a Level 7A auditor. (See id. at Pg ID 5513.) Instead, she
received a lump sum bonus and a TeamGM bonus. (Id.) Defendant also notes that
Plaintiff received a rating of “achieves expectations” as well as a 1.95% salary increase
and a $15,000 bonus in 2016.
II.

Summary Judgment Standard
It is well established that summary judgment under Federal Rule of Civil

Procedure 56 is proper when “‘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.’” United
States S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 326-27 (6th Cir. 2013)
(quoting Fed. R. Civ. P. 56(a)). When reviewing the record, “‘the court must view the
evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor.’” Id. at 327 (quoting Tysinger v. Police Dep’t of Zanesville, 463
F.3d 569, 572 (6th Cir. 2006)). Furthermore, the “‘substantive law will identify which
facts are material,’ and ‘summary judgment will not lie if the dispute about a material
fact is genuine, that is, if the evidence is such that a reasonable jury could return a

7 

verdict for the nonmoving party.’” Id. at 327 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). When considering the material facts in the record, a court
must bear in mind that “[t]he 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.
III.

Analysis
A.

Discrimination Claims

Title VII makes it unlawful for an employer to discriminate against an employee
on the basis of his or her race. See 42 U.S.C. § 2000e-2(a)(1). Racial discrimination
claims can also be brought under § 1981. The ADEA prohibits discrimination by an
employer on the basis of age. See 29 U.S.C. § 623(a)(1). Because Plaintiff does not
have any direct evidence of discrimination and instead relies on circumstantial
evidence, the burden-shifting framework articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), applies. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.
2004). Under this framework, if the plaintiff establishes her prima facie case of
discrimination, the burden of proof shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Id. If the defendant provides such legitimate
reasons, the burden of proof returns to the plaintiff to rebut the defendant’s proffered
reasons by showing them to be pretextual. Id. at 414-15.
To establish a prima facie case of discrimination,4 Plaintiff must show that 1) she
was a member of a protected class (under the ADEA, she was older than 40 years old),

4

The elements of a prima facie case under § 1981 are the same as those in a
Title VII action. See Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999).
8 

2) she was subject to an adverse employment action, 3) she was qualified for the
position, and 4) she was treated differently than similarly-situated employees outside of
the protected class (under the ADEA, younger employees). Id. at 415, 417.
Here, there is no dispute that Plaintiff is a member of a protected class and that
she is qualified for her position. Defendant disputes, however, elements two and four of
Plaintiff’s prima facie case. More specifically, Defendant argues that Plaintiff was not
subjected to an adverse employment action and that she cannot demonstrate that she
was treated differently from similarly-situated employees. Defendant also argues that
even if Plaintiff could establish a prima facie case of discrimination, she cannot establish
that her employer’s legitimate non-discriminatory reasons for its adverse employment
actions were a pretext for race and age discrimination.
1. Whether Plaintiff Suffered Adverse Employment Actions
An adverse employment action is a “‘materially adverse change in the terms or
conditions of the employment because of the employer’s actions.’” Michael v.
Caterpillar Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007) (quoting Allen v. Mich.
Dep’t of Corrs., 165 F.3d 405, 410 (6th Cir. 1999)). This materially adverse change
must be more disruptive than a mere inconvenience or an alteration of job
responsibilities. A materially adverse change might be indicated by a
termination of employment, a demotion evidenced by a decrease in wage
or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to
a particular situation.
Id. at 594 (quoting Ford v. Gen. Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002)).
Being placed on a PIP and receiving non-satisfactory work reviews are not
materially adverse acts. See Choulagh v. Holder, 528 F. App’x 432, 438 (6th Cir. 2013)
(unpublished). Instead, Plaintiff focuses on the following allegedly adverse employment
9 

actions: 1) receiving lower bonuses than her peers, 2) being relegated to the role of a
Level 6 Senior Auditor although she kept her lead title, 3) not being given audit
assignments for an entire year, and 4) being required to scan documents and organize
electronic files for six months.
Plaintiff receiving lower bonuses and being relegated to the role of a Level 6
Senior Auditor are also not sufficient to constitute adverse acts, because there was no
change in Plaintiff’s wages, benefits, or title.5 See id. (finding the alleged actions “de
minimis at best” because they did not “result[] in a decrease in salary, a less
distinguished title, or a loss of benefits”). Plaintiff argues, however, that because she
was required to scan documents and organize electronic files for six months, her
material responsibilities were significantly diminished. The Court need not decide
whether these reduced responsibilities, on their own, are sufficient to create a jury
question on this issue in light of the Court’s finding that Plaintiff cannot show she was
treated differently from similarly situated employees.
2. Whether Plaintiff was Treated Differently
To prove different treatment, Plaintiff must show that she was treated less
favorably than co-workers who were similarly situated for the same or similar conduct.
Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004). To be similarly situated,
“the individuals with whom [she] compares herself ‘must have dealt with the same
supervisor, have been subject to the same standards, and engaged in the same
conduct without such differentiating or mitigating circumstances that would distinguish

5

In fact, Plaintiff received a raise and bonus in both 2014 and 2016. (Dkt. 110-2,
Pg ID 4287-88; dkt. 118-1, Pg ID 5514.) She also received a bonus in 2015. (See dkt.
118-1, Pg ID 5514.)
10 

their conduct or the employer’s treatment of them for it.’” Id. at 906 (quoting Gray v.
Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 599 (6th Cir. 2001)).
Defendant argues that there are no other employees who reported to the same
supervisors as Plaintiff and had similar performance deficiencies that were treated more
favorably. Defendant also notes that Plaintiff continues to work as a Level 7 auditor in
GMAS, she received a raise and a bonus in 2016, and she has not been placed on a
PIP again. Plaintiff responds by arguing that she in fact performed better than other
auditors who were treated more favorably. She also disputes the accuracy of her
reviews.6
Plaintiff had, however, admitted that she at times missed deadlines. Thus, even
though she may not agree with every statement in her reviews, the record shows that
she did have performance deficiencies. This differentiating circumstance explains why
she did not receive a raise in 2015 and received lower bonuses than some of her peers.
And while Plaintiff argues that she was actually a stronger performer, she does not have
any relevant evidence of this. She points to the fact that Appleman had her replace a
younger Caucasian as a lead on the 2013 Audit due to her greater skillset. However,
her performance deficiencies arose during the course of that audit. The evidence of her
performance prior to that audit is of little relevance to the treatment she received
afterwards. She also points to the testimony of a co-worker by the name of Todd
Grafton, who opined that Plaintiff was better than other Level 7 auditors. (Dkt. 110-16,
Pg ID 4624.) However, Grafton is someone who had worked under Plaintiff’s

6

For example, Plaintiff argues that comments regarding her using her personal
phone during work hours were untrue.
11 

supervision and who she had, in fact, criticized. She also points to a statement made
by a manager by the name of Kevin Seitz that she and Grafton were the “stronger
performers,” but the only evidence of that statement is Grafton’s testimony. Thus, there
is no evidence in the record from which a reasonable jury could conclude that Plaintiff
was treated differently from similarly situated employees.7 Because Plaintiff is unable to
prove her prima facie case of discrimination, there is no need to discuss the issue of
pretext. GM is entitled to summary judgment on Plaintiff’s discrimination claims.
B.

Retaliation Claims

Title VII makes it unlawful for an employer to discriminate against any of its
employees because that employee “has opposed any practice made an unlawful
employment practice by this title.”8 42 U.S.C. § 2000e-3(a). The ADEA contains a
similar anti-retaliation provision. See 29 U.S.C. § 623(d). Retaliation claims can also
be brought under § 1981. See CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457
(2008). Because Plaintiff does not have any direct evidence of retaliation and instead
relies on circumstantial evidence, the burden-shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that is discussed above
applies. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 674 (6th Cir. 2013). In order to
establish her prima facie case of retaliation, Plaintiff must establish that 1) she engaged
in protected activity, 2) GM knew she exercised a protected right, 3) an adverse
employment action was subsequently taken against her, and 4) there was a causal
connection between the protected activity and the adverse employment action. See

7

Also, there is evidence in the record that other auditors were similarly asked to
perform non-substantive tasks, such as moving boxes. (See dkt. 110-16, Pg ID 4625.)
8
This is known as the opposition clause of the anti-retaliation provision.
12 

Morris v. Oldham Cty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000) (Title VII); Fox v.
Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007) (ADEA); Wade v. Knoxville Utils.
Bd., 259 F.3d 452, 464 (6th Cir. 2001) (§ 1981). “The burden of establishing a prima
facie case in a retaliation action is not onerous, but one easily met.” Taylor v. Geithner,
703 F.3d 328, 336 (6th Cir. 2013) (internal quotations and citation omitted).
1. Whether Plaintiff Engaged in Protected Activity
To prove that she engaged in protected activity, Plaintiff “must establish that
[s]he challenged an employment practice [s]he reasonably believed was unlawful.”
Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 645 (6th Cir. 2015) (citation
omitted). While the complaint does not need to be made “with absolute formality,
clarity, or precision,” “vague complaints do not constitute opposition.” Id.
Here, Plaintiff contends that she engaged in several types of protected activity: 1)
making complaints to Appleman about her co-workers’ behavior, which she
characterizes as discriminatory as well as creating a hostile work environment, 2)
confronting a director (Yoder) about making a racist remark to an African-American coworker (Collins), 3) complaining to a supervisor (Appleman) about Collins being fired for
the same things other (non-African-American) employees were doing, and 4) filing an
EEOC claim. Defendant agrees that filing an EEOC claim constitutes protected activity
but argues that the remaining acts do not.
In Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir.
1989), the Sixth Circuit Court of Appeals considered whether an employee’s complaints
constituted protected activity. The court noted that most of the complaints made by the
employee in that case contested the correctness of a decision made by the employer

13 

and not any unlawful employment practice. And while the employee had complained
about a racist statement made by a co-worker and asserted that the company’s critique
of his management style was “a case of ethnocism,” the court reasoned that this charge
was too vague to put the employer on notice that he was opposing an unlawful practice.
Id. Ultimately, the court concluded that the plaintiff had not stated a cause of action for
retaliation. Id. at 1313-14.
In contrast, in Yazdian, 793 F.3d at 646, the Sixth Circuit found that the
employee had made six statements to his employer that were specific enough to qualify
as protected activity. Those statements were: “I’m going to respond with counsel;” “I’m
going to bring you up on charges;” “bring a lawsuit,” hostile work environment;” “I will
have an attorney respond;” and “I will be responding with charges.” Id. The court
reasoned that these complaints, particularly the hostile work environment comment, put
the employer on notice that the employee believed his supervisor’s conduct was
unlawful. Id.
The Court finds the complaints made to Appleman in this case more akin to the
vague comments in Booker than the specific comments made in Yazdian. Plaintiff did
not use any specific term of art, like the employee in Yazdian, to put GM on notice that
she believed her co-workers’ behavior constituted race and age discrimination or that
they created a hostile work environment. With regard to her complaints that Collins was
fired for doing the same things other people had done, there is no evidence that she told
Appleman that she believed this was due to his race. Without having told Appleman
that she believed any disparate treatment was due to Collins’ race, there is no way that

14 

GM would have known that Plaintiff was lodging a complaint of race discrimination.9 To
be deemed protected activity under a particular statute, the plaintiff must have
referenced acts of discrimination under that statute. See Fox v. Eagle Distrib. Co., 510
F.3d 587, 592 (6th Cir. 2007) (finding that Plaintiff’s complaints about the denial of his
promotion did not constitute protected activity under the ADEA because he did not
indicate that he believed he was denied the promotion due to age discrimination or that
his employer engaged in any unlawful employment practice). Similarly, while Plaintiff
reported the alleged assault, she did not indicate that she believed the assault was
related to any race or age discrimination or that it was part of a hostile work
environment. To the contrary, Plaintiff herself stated, in an October 28, 2014 email:
“[Wong] is my colleague and friend. I do not think she knew I have pinched nerves
(neck/back); and, I know she would never, ever (purposely) do anything to harm me.”
(Dkt. 88-3, Pg ID 2642.) In sum, the Court finds that the complaints made by Plaintiff to
Appleman were too vague to put Defendant on notice that she believed an unlawful
employment practice related to race or age discrimination or a hostile work environment
was taking place.
Plaintiff also alleges that she complained to Yoder about a racist remark he had
made. The Court finds that this isolated complaint is an insufficient basis for Plaintiff’s

9

The Court also notes that the Sixth Circuit has stated that an employee’s
complaints “about management practices” are too vague to constitute opposition to
employment discrimination. See Yazdian, 793 F.3d at 647 (citation omitted). Here, it
appears much of Plaintiff’s frustration stemmed from the perceived friendship between
Appleman and Gonzalez and Wong. Complaining that Collins was fired for doing the
same things others were doing could simply be construed as a complaint about that
bias.
15 

retaliation claims.10 This leaves the filing of the EEOC complaint as the only protected
activity undertaken by Plaintiff. As Defendant correctly notes, many of the adverse acts
alleged by Plaintiff occurred before the filing of the EEOC complaint and, thus, she
cannot show causation with regard to those acts. The Court will, therefore, continue its
analysis of Plaintiff’s retaliation claims with regard to the acts that took place after the
EEOC complaint only.
2. Whether Plaintiff Suffered Adverse Employment Actions
Plaintiff’s burden of establishing an adverse action is “less onerous” in the
retaliation context than in the discrimination context. See Burlington Northern & Santa
Fe Ry. v. White, 548 U.S. 53, 67-68 (2006). The Sixth Circuit has stated that “‘if a
reasonable trier of fact could conclude that a retaliatory act would deter a person from
exercising [her] rights, then the act may not be dismissed.’” Holzemer v. City of
Memphis, 621 F.3d 512, 524 (6th Cir. 2010) (quoting Siggers-El v. Barlow, 412 F.3d
693, 701 (6th Cir. 2005)).
The alleged adverse acts that took place after Plaintiff filed her EEOC
complaint—not being assigned to an audit and being required to scan documents and
organize electronic files—are sufficient to create a jury question on the issue of whether
Plaintiff suffered an adverse employment action, because a reasonable jury could

10

Also, there is no evidence that this complaint was ever relayed to Plaintiff’s
supervisor or anyone else that made decisions with regard to Plaintiff. Thus, even if this
complaint was protected activity, Plaintiff cannot prove causation with regard to the
adverse acts that followed this complaint. See Pawlaczyk v. Besser Credit Union, No.
1:14-CV-10983, 2015 U.S. Dist. LEXIS 90591, at *35 (E.D. Mich. Apr. 13, 2015) (“if the
decision-makers did not know of the protected activity, it did not cause them to take an
adverse action”).
16 

conclude that an employee may be deterred from filing an EEOC complaint if she knows
that she may no longer receive any substantive work assignments.
3. Whether there was a Causal Connection between the Protected
Activity and Adverse Acts
In order to establish the causation element of her retaliation case, Plaintiff must
show that her protected activity was the but-for cause for Defendant’s allegedly adverse
actions. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013). Plaintiff filed
her EEOC complaint on January 28, 2016, and informed a supervisor that she did so in
early February of 2016. She alleges that she assisted with a small project that month
but was not given any audit assignments until she went on disability leave the following
year and was also required to scan documents and manually transfer electronic files for
about six months.
The Sixth Circuit has stated that “[i]n some cases, temporal proximity alone may
be sufficient” to establish causation. See Savage v. Fed. Express Corp., 856 F.3d 440,
448-49 (6th Cir. 2017) (finding that “33 days between [plaintiff]’s protected activity and
his suspension, and the 41 days between his activity and his termination . . . raises an
inference that the adverse action was motivated by [plaintiff]’s protected activity”). And
while an inference of retaliation does not arise when the adverse acts began prior to the
protected activity, the type of adverse acts that took place prior to the EEOC complaint
(being placed on a PIP, lower bonuses) was different than the type of adverse acts that
took place after (no longer being assigned to audits, being required to scan documents
and organize electronic fines). Thus, the Court finds that the close temporal proximity
between Plaintiff’s EEOC complaint and the reduced substantive responsibilities
assigned to Plaintiff raises an inference that these acts were motivated by retaliatory
17 

animus. Because Plaintiff has satisfied her burden of proof regarding her prima facie
case, the burden shifts to Defendant to articulate legitimate, non-discriminatory reasons
for its actions.
4. Whether Defendant’s Proffered Legitimate Reasons were
Pretextual
Defendant argues that Plaintiff’s inconsistent performance and negative reviews
were legitimate reasons for any allegedly adverse acts. Plaintiff can demonstrate,
however, that Defendant’s proffered legitimate reason is a pretext for retaliation by
showing that the proffered reason 1) has no basis in fact, 2) did not actually motivate its
adverse employment actions, or 3) was insufficient to warrant the challenged adverse
employment actions. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000).
There is evidence in the record that Plaintiff was inconsistent, and she had even
admitted that she at times missed deadlines. Plaintiff argues, however, that her reviews
indicated that she performed at the level of a Level 6 auditor and thus, her inconsistent
performance and negative reviews would only justify her placement on a PIP, the
elimination of her lead role, and the lower bonuses but would not justify refusing to give
her audit assignments for an entire year and requiring her to scan documents and
organize electronic files for six months.11 Defendant responds by arguing that due to
the ebb and flow of work, other auditors were asked to perform similar tasks.

11

The Court notes that while it did not reach the issue of pretext in the context of
Plaintiff’s discrimination claims, by making this argument, Plaintiff appears to concede
that Defendant had a legitimate, non-discriminatory reason for the adverse acts that
predated the filing of the EEOC complaint by Plaintiff. By identifying this intervening
event (the filling of an EEOC complaint), Plaintiff strengthens her argument regarding a
possible retaliatory animus following this protected activity but weakens her argument
regarding a discriminatory animus. If Defendant had discriminated against Plaintiff, it
18 

The Court first notes that the adverse acts at issue, namely Defendant not giving
Plaintiff any audit assignments and requiring her to scan documents and organize
electronic files, began after she filed her EEOC complaint. And while temporal proximity
alone is insufficient to establish pretext, the lack of a connection between Defendant’s
proffered reason and the adverse acts at issue is sufficient to raise a jury question on
this issue. This is especially true because Plaintiff had previously suffered
consequences that were related to her inconsistent performance that were not as
severe as the consequences she faced after the filing of the EEOC complaint. Thus,
there is a question of whether those later adverse acts were motivated by retaliatory
animus. Plaintiff’s retaliation claims based upon the adverse acts she allegedly suffered
after the filing of her EEOC complaint survive this motion.
C.

Hostile Work Environment Claims

A hostile work environment claim requires proof that 1) plaintiff belongs to a
protected class, 2) plaintiff was subjected to unwelcome harassment, 3) the harassment
was based on race (or age), 4) “the harassment was sufficiently severe or pervasive to
alter the conditions of employment and create an abusive working environment,” and 5)
the defendant knew or should have known about the harassment and failed to take
action. Williams v. CSX Transp. Co., 643 F.3d 502, 511 (6th Cir. 2011). The relevant
conduct must “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). In making a determination of “whether an actionable

would have been doing so all along and not waited until she had filed an EEOC
complaint.
19 

hostile environment claim exists,” the court looks at “all the circumstances, including 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.” Nat’l R.R. Passenger Corp. v. Morgan, 536 US.
101, 116 (2002) (quotations and citations omitted).
Here, Plaintiff alleges that Wong and Gonzalez played inappropriate racially
charged vidoes, acted “like a bunch of roaming high school bullies,” and made agerelated comments—specifically they told her she should retire soon and that people her
age were not interested in devices such as the Fitbit. (Dkt. 110-5, Pg ID 4395, 4401.)
Plaintiff also asserts that Wong punched her, taunted her the next day, and took her
laptop, emphasizing that the first of these incidents was physically threatening and
humiliating.
While Plaintiff’s allegations of physical assault in the workplace are extremely
troubling,12 there is no evidence that Wong’s conduct was motivated by racial animus or
animus against Plaintiff due to her age.13 Only harassment based on the plaintiff’s
protected status may be considered in a hostile work environment claim. See Reed v.
Procter & Gamble Mfg. Co., 556 F. App’x 421, 432 (6th Cir. 2014) (stating that there

12

The Court notes that there is some disagreement as to what exactly occurred
that day. While Plaintiff states that Wong punched her, other witnesses stated that
Wong “tap[ped]” or “poke[d]” her. (See Dkt. 110-25, Pg ID 4702.) However, when
deciding a motion for summary judgment, the Court views the record in the light most
favorable to the non-moving party. Thus, the Court will assume Plaintiff was punched.
13
Also, these incidents occurred over a short period of time and were therefore
isolated, not pervasive. See Williams, 643 F.3d at 511 (noting the offensive statements
were isolated, not pervasive, because all but two occurred over a two-day period).
20 

was no need to consider harassment unrelated to race when assessing the overall
severity or pervasiveness of the harassment) (unpublished).
With regard to Plaintiff’s co-workers playing inappropriate racially charged videos
and making assumptions about “black people,” except for the one comment by Wong
that “[t]hese are your people,” (dkt. 110-5, Pg ID 4400), their racially charged comments
were not directed towards Plaintiff herself. See Barrett v. Whirlpool Corp., 556 F.3d
502, 518 (6th Cir. 2009) (stating that the use of the word “nigger” by several co-workers
was offensive but did not suggest harassment of plaintiff herself); Lewis-Smith v. W. Ky.
Univ., 85 F. Supp. 3d 885, 905 (W.D. Ky. 2015) (noting that a lack of respect for the
presidency of Obama and a racial comment did not suggest harassment of Plaintiff
herself). And while the videos and race and age-related comments may have been
offensive to Plaintiff, they were not severe or pervasive enough to sustain a hostile work
environment claim.14 See Williams, 643 F.3d at 513 (racist statements, such as calling
Jesse Jackson and Al Sharpton “monkeys” and saying black people should “go back to
where they came from,” were despicable but were not severe or pervasive enough to
create a jury question on the hostile work environment claim); see also Phillips v. UAW
Int’l, 854 F.3d 323, 328 (6th Cir. 2017) (“even offensive and bigoted conduct [is]
insufficient to constitute a hostile work environment if it is neither pervasive nor severe
enough to satisfy the claim’s requirements”). GM is therefore entitled to summary
judgment on Plaintiff’s hostile work environment claims.

14

Due to the Court’s finding that the alleged harassment did not rise to the level
of creating an abusive working environment, there is no need to address the final factor
of whether GM knew or should have known about the harassment and failed to take
action after learning of the harassment.
21 

D.

Failure to Accommodate Claim

To establish a failure to accommodate claim under the ADA, Plaintiff must prove
1) she has a disability, 2) she is otherwise qualified for the job, and 3) Defendant
refused to make a reasonable accommodation for the disability. Smith v. Ameritech,
129 F.3d 857, 867 (6th Cir. 1997). Defendant argues that Plaintiff never requested a
reasonable accommodation that was denied. Plaintiff asserts that she requested to
work from home numerous times, but that request was sometimes denied.
“The ADA does not obligate employers to make on-the-spot accommodations of
the employee’s choosing.” Brumley v. United Parcel Serv., Inc., 909 F.3d 834, 840 (6th
Cir. 2018). Instead, an employer is required to “engage in an informal, interactive
process with the employee to identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those limitations.” Id.
(quotations and citations omitted).
Here, Plaintiff did not clearly tie her request to work from home to her disability.
Nor does she appear to have engaged in an interactive process with her employer. See
id. (finding that plaintiff did not state a prima facie failure to accommodate claim
because he voluntarily abandoned the interactive process with his employer). For
example, when her request to work from home was denied in December 2016, she
informed her supervisor that she would use her vacation and sick time instead. (See
dkt. 110-56.) Moreover, the record shows that Plaintiff was sometimes allowed to work
from home and that she was a salaried employee who never took unpaid leave, despite
a supervisor suggesting the need to do so. (See dkt. 110-5, Pg ID 4470.) GM is
entitled to summary judgment on Plaintiff’s failure to accommodate claim.

22 

IV.

Conclusion
For the above-stated reasons, Defendant’s motion for summary judgment is

GRANTED IN PART and DENIED IN PART. The claims that survive this motion are
Plaintiff’s retaliation claims based on the allegedly adverse acts that followed the filing of
her EEOC complaint only.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: February 14, 2019
I hereby certify that a copy of the foregoing document was served upon counsel of record
on February 14, 2019, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

23