Thomas v. AutoZone, Inc. et al
Filing
34
ORDER granting in part and denying in part 28 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALYSSA THOMAS,
Case No. 17-10126
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
v.
AUTOZONE, INC., ET AL.,
U.S. MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS
Defendants.
/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [28]
Plaintiff Alyssa Thomas commenced this sexual harassment and retaliation
action against Defendants AutoZone, LLC (“AutoZone”) and Cory Schultz on
January 16, 2017. Before the Court is Defendant AutoZone’s Motion for Summary
Judgment [28] filed on May 4, 2018. The Motion is fully briefed. The Court held a
hearing on the Motion on October 23, 2018. For the reasons explained below, the
Court GRANTS in part and DENIES in part Defendant’s Motion for Summary
Judgment [28].
FACTUAL BACKGROUND
On September 4, 2013, Plaintiff began working at AutoZone’s Port Huron
Store. Plaintiff was employed as a part-time commercial driver in the Store’s
Commercial Department. At the time of Plaintiff’s employment, Andrea Childers
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was the Store Manager, Vicki Summerer was the Commercial Manager, and Cory
Schultz was a Part Sales Manager. As managers, Childers, Summerer, and Schultz
wore grey shirts. As a part-time employee, Plaintiff wore a red shirt. Since she was
in the Commercial Department, Plaintiff reported directly to Summerer, who was
primarily responsible for drafting Plaintiff’s schedule. When Summerer was absent,
however, Plaintiff occasionally reported to Childers and Schultz.
Throughout the first year of her employment, Plaintiff’s hours fluctuated each
week, ranging from 10 to 25 hours. Plaintiff was eager to work more hours, so she
could earn money to support herself and her child. She requested additional hours
from Summerer who declined her request because of performance issues. Vicki
Summerer Dep. 86:3-10, Feb. 8, 2018. Throughout her employment, Plaintiff
received write-ups known as “Corrective Action Reviews” for workplace policy
violations such as using her phone while driving and tardiness.
In September 2014, Defendant Schultz began sexually harassing Plaintiff at
work. This started when Schultz took Plaintiff’s phone without her permission and
discovered naked photos of her. The harassment continued for two months. Schultz
told Plaintiff that he would get her more hours if she gave him “sex, a blowjob, or
naked pictures.” Schultz admitted to repeatedly requesting oral sex from Plaintiff,
asking her if she can deep throat, and talking about “smashing her vagina.” Coty
Schultz Dep. 34:4-23, Mar. 14, 2018.
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On November 29, 2014, Plaintiff reported the harassment to Childers. She
testified that she did not report before that date because she was afraid that no one
would believe her.
Separately, Summerer testified that, on November 29, 2014, she decided that
she would no longer schedule Plaintiff for long drives up north because she felt that
Plaintiff took an unreasonable amount of time to complete the trips. Summerer Dep.
102:8-16. Summerer claims that she had previously spoken with Plaintiff about the
length of time she took to make deliveries. Id. at 48:2-9. Plaintiff testified, however,
that November 29th was the first time Summerer spoke with her about this issue.
Pl.’s Dep. 130:8-20, Feb. 7, 2018. Plaintiff was never written up for late delivery
times.
On December 1, 2014, Childers opened the Store with Summerer and told her
about Plaintiff’s allegations against Schultz. Summerer was shocked and thought
Plaintiff was lying. Later that day, Summerer mentioned to Childers that she had
decided to prohibit Plaintiff from driving up north. Summerer Dep. 97:16-25.
On December 2, 2014, Childers discussed the harassment allegations with
Plaintiff directly. Plaintiff testified that Childers “didn’t believe her” and “made
[her] feel wrong.” Pl.’s Dep. 37:20. Also on that day, Summerer told Plaintiff, for
the first time, that she would not schedule her for drives up north in the future.
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Plaintiff was upset and told Summerer that she felt like she was being punished for
reporting Schultz. Summerer Dep. 106:5-10.
Thereafter, AutoZone began an investigation into the sexual harassment
allegations. Regional Human Resources Manager, Willie Banks, interviewed
Plaintiff on December 11, 2014. During the interview, Plaintiff shared audio
recordings which documented Schultz’s conduct. Plaintiff testified that, during the
interview, Banks asked her what she did to make Schultz harass her. Pl.’s Dep. 23:18.
The following day, Banks interviewed Schultz. After listening to the
recordings and interviewing Schultz, Banks believed that Schultz had violated
AutoZone’s sexual harassment policy and recommended termination. On December
12, 2014, before AutoZone could terminate his employment, Schultz resigned.
Plaintiff continued to work at AutoZone through mid-March 2015. During
those months, her hours were reduced significantly. Her payroll records show that
from December 2014 to March 2015, she worked an average of 8 hours per week,
compared to the average of 20 hours per week she worked from September 2013 to
November 2014. [Dkt. # 28-1]. Summerer acknowledged that she had reduced
Plaintiff’s hours during this period but maintains that it was “due to her performance
issues.” Summerer Dep. 103:14-19.
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On March 18, 2015, Plaintiff quit her job at AutoZone, partly because she was
not getting enough hours to support herself. On March 27, 2015, Plaintiff filed a
harassment and retaliation claim with the EEOC. Plaintiff received a Notice of a
Right to Sue on October 24, 2016.
Plaintiff commenced this action against Defendants AutoZone and Schultz on
January 16, 2017. She alleges hostile work environment sexual harassment, quid pro
quo sexual harassment, and retaliation in violation of Title VII and Michigan’s Elliot
Larsen Civil Rights Act (“ELCRA”).
On May 15, 2017, the action was stayed as to Schultz because he had filed for
Chapter 11 bankruptcy.
AutoZone filed this Motion for Summary Judgment [28] on May 4, 2018.
Plaintiff filed a Response [31] on June 1, 2018. AutoZone filed a Reply [32] on June
22, 2018. On October 23, 2018, the Court held a hearing on the Motion.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party has the
burden of establishing that there are no genuine issues of material fact, which may
be accomplished by demonstrating that the nonmoving party lacks evidence to
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support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue for trial exists if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
ANALYSIS
I. Sexual Harassment
To establish a prima facie case of hostile work environment based on sexual
harassment, Plaintiff must 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 [her]
employment or created an intimidating, hostile, or offensive work environment; and
5) respondeat superior.” Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 470 (6th Cir.
2012). For purposes of this Motion, AutoZone concedes that Plaintiff has satisfied
the first four prongs. AutoZone argues only that it is not vicariously liable for
Schultz’s harassment.
“Under Title VII, an employer’s liability for such harassment may depend on
the status of the harasser.” Vance v. Ball State Univ., 570 U.S. 421, 424 (2013). At
the hearing, Plaintiff clarified that she is proceeding solely on a strict liability theory
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against AutoZone. Accordingly, to hold AutoZone liable for Schultz’s conduct,
Plaintiff must first establish that Schultz was her “supervisor” under Title VII.1
Plaintiff alleges both quid pro quo and hostile work environment sexual
harassment in violation of Title VII and the ELCRA.2 Quid pro quo sexual
harassment “occurs when an employee’s submission to unwanted sexual advances
becomes either a condition for the receipt of job benefits, or the means to avoid an
adverse employment action.” Howington v. Quality Rest. Concepts, LLC, 298 F.
App’x 436, 440 (6th Cir. 2008). As such, to establish quid pro quo sexual
harassment, Plaintiff would need to show that Schultz was authorized to take, and
took, some tangible employment action against her. Vance, 570 U.S. at 440. On the
other hand, to establish hostile work environment harassment, Plaintiff need not
Establishing that the harasser was the claimant’s supervisor is a prerequisite for
strict liability against the employer. If Schultz were Plaintiff’s co-worker, as opposed
to her supervisor, negligence would “provide[] the better framework for evaluating
[AutoZone’s] liability.” Vance, 570 U.S. at 439. Had Plaintiff pursued a negligence
theory, as an alternative to strict liability, she could establish vicarious liability by
demonstrating that AutoZone “was negligent in controlling working conditions.” Id.
In this instance, however, Plaintiff has waived this argument.
1
The labels “quid pro quo and hostile work environment are not controlling for
purposes of establishing employer liability . . . .” Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 765 (1998). Nonetheless, they are relevant to Title VII cases to the
extent that they distinguish between cases in which a threat is carried out—quid pro
quo—and those which involve offensive conduct in general—hostile work
environment. Id. at 753.
2
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show Schultz took a tangible employment action against her but must overcome
AutoZone’s affirmative defense under Ellerth. Id.
The Court need not distinguish between Plaintiff’s quid pro quo and hostile
work environment claims because she cannot meet her initial burden of establishing
that Schultz was her supervisor. “An employee is a ‘supervisor’ for purposes of
vicarious liability under Title VII if he or she is empowered by the employer to take
tangible employment actions against the victim.” Id. A tangible employment action
is “a significant change in employment status,” including: “hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Ellerth, 524 U.S. at 761.
Despite his title as manager, Schultz does not constitute a supervisor because
he was not authorized to hire, fire, demote, or promote Plaintiff or any other
employee. See Equal Emp’t Opportunity Comm’n v. AutoZone, Inc., 692 F. App’x
280, 283 (6th Cir. 2017) (holding that AutoZone did not authorize Townsel, the store
manager, to take tangible employment action against his victims, and explaining that
Townsels’ “ability to direct the victims’ work at the store and his title as store
manager [did] not make him the victims’ supervisor for purposes of Title VII.”); see
also Hylko v. Hemphill, 698 F. App’x 298, 299 (6th Cir. 2017) (holding that, despite
his title as supervisor, Hemphill was not Hylko’s supervisor under Title VII because
he lacked the authority to promote, to demote, or to fire Hylko).
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Plaintiff submits that by vesting Schultz with the authority to schedule her
hours, AutoZone empowered Schultz to cause a significant change in Plaintiff’s
benefits. See Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 217 (3d Cir. 2017)
(noting that “[g]iven Marshall’s power as a custodial foreman to even allow Moody
to work, he could effect a ‘tangible employment action’ by setting her hours and
hence her pay.”).
Plaintiff’s reliance on Moody, a Third Circuit decision, is misguided. The
Sixth Circuit has explained that “what matters under Vance” is whether the alleged
supervisor could “hire the employees he harassed.” EEOC v. AutoZone, 692 F.
App’x at 284 (6th Cir. 2017). Even assuming Schultz could make changes to
Plaintiff’s schedule, his “ability to direct [her] work at the Store” does not render
him a supervisor for purposes of vicarious liability. Id. at 283.
In the alternative, Plaintiff submits that even if Schultz was not actually
authorized to take tangible employment action against her, AutoZone is liable
nonetheless because she reasonably believed that he was so authorized. See Hylko,
698 F. App’x at 299. Plaintiff testified that she “assumed management – any
management position in the building” could fire an employee but acknowledged that
she had no “evidence that would support [that] theory.” Pl.’s Dep. 107-12:15; 108:710.
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Given that Plaintiff has provided no evidence to support her claim that she
reasonably believed Schultz could fire her, her Title VII sexual harassment claim
against AutoZone must fail. Because she can neither demonstrate that Schultz was a
supervisor within the meaning of Title VII nor that she reasonably believed Shultz
was her supervisor, the Court need not reach the question of whether a reduction in
hours constitutes a “tangible employment action” for purposes of distinguishing
between her quid pro quo or hostile work environment claims. Plaintiff’s ELCRA
quid pro quo claim fails for the same reasons. See Waldo v. Consumers Energy Co.,
726 F.3d 802, 825 (6th Cir. 2013) (noting that the legal standards governing Title
VII claims and corresponding ELCRA claims are nearly identical).
II. Retaliation
The McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burden-shifting
framework governs Title VII retaliation claims based on circumstantial evidence.
Morris v. Oldham Cnty. Fiscal Ct., 201 F.3d 784, 792-93 (6th Cir. 2000). First,
Plaintiff bears the burden of establishing a prima facie case of retaliation. If Plaintiff
establishes a prima facie case, the burden shifts to Defendant to set forth a legitimate
business reason for the adverse employment action. Finally, the burden shifts back
to Plaintiff to show that Defendant’s proffered reason is a pretext for retaliation.
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A. Prima facie case
To establish a prima facie case of retaliation under Title VII, Plaintiff must
show that: 1) she engaged in a protected activity; 2) Defendant knew of her protected
conduct; 3) Defendant took an adverse employment action towards her; and 4) there
was a causal connection between the protected activity and the adverse employment
action. Sanford v. Main St. Baptist Church Manor, Inc., 327 F. App’x 587, 598 (6th
Cir. 2009) (internal citations omitted).
AutoZone concedes that Plaintiff has satisfied the first three prongs, arguing
only that Plaintiff cannot meet her burden with respect to demonstrating a causal
connection between her act of reporting Schultz and the reduction in her hours.
“[W]here some time elapses between when the employer learns of a protected
activity and the subsequent adverse employment action, the employee must couple
temporal proximity with other evidence of retaliatory conduct to establish causality.”
Galeski v. City of Dearborn, 435 F. App’x 461, 469 (6th Cir. 2011).
Childers informed Plaintiff that she would no longer be allowed to conduct up
north deliveries on December 2, 2014. This took place just three days after
November 29th, the day on which Plaintiff told Childers about the sexual
harassment. Summerer claims that she made the decision regarding up north
deliveries on November 29th, prior to hearing about the allegations against Schultz.
But Summerer’s testimony that this timing was a “coincidence” is hardly convincing
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in light of the fact that she did not communicate her decision to anyone until
December 1st, after she had learned that Plaintiff had reported Schultz.
Childers and Summerer’s antagonistic responses to Plaintiff further support a
finding of causation. Summerer angrily told Plaintiff to “look her in the face” and
tell her that she was “telling the truth about Coty,” and admitted that she didn’t
believe Plaintiff until “Coty walked out the door” on December 12, 2014. Summerer
Dep. 107:21-25; 108:18-20.
The unusually close temporal proximity between Plaintiff’s complaint of
sexual harassment and AutoZone’s prohibition on up north deliveries, coupled with
Childers and Summerer’s hostile reactions to the accusations against Schultz,
sufficiently establish a causal connection between the two activities for purposes of
alleging a prima facie case of retaliation.
B. Legitimate business reason
AutoZone contends that it cut Plaintiff’s hours solely for performance reasons.
Childers testified that Plaintiff “was unreliable as an employee, she would call in,
she would show up late, and she’d ask to leave early.” Childers Dep. 66:1-2, Apr. 3,
2018. Moreover, AutoZone maintains that, on November 29, 2014, Summerer
decided to stop sending Plaintiff on deliveries up north because she took too long.
AutoZone further maintains that Summerer made this decision before Plaintiff
reported Schultz to Childers.
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C. Pretext
“A plaintiff may establish pretext by showing that the employer’s proffered
reasons (1) have no basis in fact; (2) did not actually motivate the action; or (3) were
insufficient to warrant the action.” Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d
274, 283 (6th Cir. 2012).
Plaintiff argues that the fact that she was never written up for late delivery
times demonstrates that her performance did not actually motivate the reduction in
her hours. Additionally, despite documentation establishing a decrease in hours,
Childers refused to even acknowledge that Plaintiff’s hours were reduced during her
last few months of employment. Childers Dep. 56:16-18.
Plaintiff further argues that her allegedly poor performance was insufficient
to warrant such a significant drop in hours. Plaintiff points to the testimony of Mary
Ellery, another part-time driver for AutoZone who worked under Summerer. Ellery
testified that Summerer wrote her up several times for tardiness and at least once for
texting and driving. Mary Ellery Dep. 68:11-15; 93:12-16, Mar. 15, 2018. Ellery,
however, still worked an average of 20 hours per week, while Plaintiff worked an
average of 8 hours per week in her final months of employment.
AutoZone submits that Plaintiff’s policy violations are well-documented in
her disciplinary record, and notes that Plaintiff acknowledged that it would be
reasonable for an employer to schedule less hours for an employee with poor
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performance. With respect to Ellery, AutoZone argues that she was neither similarly
situated to Plaintiff nor engaged in the same type of misconduct for purposes of
demonstrating pretext.
Plaintiff has offered sufficient evidence of pretext to survive summary
judgment. The close temporal proximity between Plaintiff’s report of Schultz and
the reduction in her hours, Childers and Summerer’s hostile reactions to her claim
of harassment, and the disparate treatment of her and Ellery, “create an inference of
causation.” Worthington v. Brighton Ford, Inc., No. 13-cv-10249, 2014 WL 555186,
at *9 (E.D. Mich. Feb. 12, 2014) (internal citation omitted). Viewing the facts in the
light most favorable to Plaintiff, a reasonable jury could find that AutoZone engaged
in retaliatory conduct in violation of Title VII and the ELCRA. See id. at *8 (noting
that “[t]he analysis for retaliation claims under Title VII and the ELCRA is the
same.” (citing Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004))).
CONCLUSION
For the reasons stated above,
IT IS ORDERED that Defendant’s Motion for Summary Judgment [28] is
GRANTED in part and DENIED in part.
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IT IS FURTHER ORDERED that Plaintiff’s hostile work environment,
quid pro quo, and intentional infliction of emotional distress3 claims are HEREBY
DISMISSED. Remaining in this action are Plaintiff’s retaliation claims in violation
of Title VII and the ELCRA.
SO ORDERED.
Dated: November 20, 2018
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Plaintiff voluntarily dismissed her intentional infliction of emotional distress claim
in her Response [31] to Defendant’s Motion.
3
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