Charles v. Medtest DX. Inc.

Filing 20

OPINION AND ORDER granting 15 defendant's Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARTIN CHARLES,
Plaintiff,
CASE NO. 17-CV-10376
HON. GEORGE CARAM STEEH

v.
MEDTEST DX, INC.,
Defendant.
/

OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (Doc. 15)
Plaintiff Martin Charles, an African American and native of Guyana,
who worked for defendant MedTest DX, Inc. (“MedTest”) for about five
years in various positions, lastly as a technical service manager, brought
this race and national origin discrimination suit under Title VII, 42 U.S.C. §
2000e-2(a)(1) and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”),
Mich. Comp. Laws §§ 37.2101, et seq. arising out of his termination.
MedTest allegedly discharged him for poor performance, improper outside
part-time employment which posed a conflict-of-interest, and his refusal to
participate in a performance review process with his peers. Charles also
alleges retaliation for allegedly complaining of racial discrimination to

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human resources personnel shortly before his termination. Now before the
court is MedTest’s motion for summary judgment. Oral argument was
heard on June 4, 2018 and informs the court’s decision here. For the
reasons set forth below, Defendant’s motion for summary judgment shall
be granted.
I. Background
The facts as set forth below are construed in favor of the non-moving
party, here Charles. In 2008, Charles began working for Polymedco as a
clinical technical services representative. His duties included answering
customers calls, assisting with technical problems, validating quality control
material, and assisting quality assurance. Charles would install and
validate testing instruments and train the customers on their use. In 2011,
MedTest purchased Polymedco and Charles continued his employment in
the same position and at the same pay. MedTest is a diagnostic company
in the business of selling general chemistry testing systems and reagents
to laboratories in the United States. Around the same time, MedTest
bought another company and moved its headquarters to Canton, Michigan.
In August, 2013, MedTest paid to relocate Charles and his family to
Canton, Michigan. At the time of his transfer, he was offered the position of
technical sales representative and he reported to his direct supervisor, Ron
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Jamison, who was the head of technical services. Several months later, in
January, 2014, Jamison promoted Charles to the position of technical
service manager, a position that had been promised to him prior to the
move. As part of his responsibilities, all technical service staff reported to
him, and he would continue to report to Jamison. Although it was a
promotion, his pay did not increase because his annual salary of $87,000
was already in excess of his peers in Michigan. Charles was the only
African American manager at MedTest.
Charles’ performance problems began in 2014. His 2014
performance evaluation noted that his communication skills were lacking,
that he needed to improve his teamwork skills, and that improvement was
required. Charles argues, however, that he received a 2% pay increase in
2014 as well as a bonus, thus, suggesting his raise was “consistent with
exceptional performance.” However, the 2% increase was consistent with
his evaluation of “meets expectations.” Also, his 1.5% pay raise in 2015
was the lowest of any MedTest managers because of his evaluation rating
of “improvement required.”
In March, 2015, Medtest hired Mark Pagels, a Caucasian, as the
Senior Director of Customer Support. MedTest’s CFO, Tim Allen, testified
that Pagels was hired because of his vast experience managing 15-plus
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people, whereas Charles lacked experience managing larger service
organizations. (Doc. 19 at PgID 183). Although Charles did not receive a
pay decrease, Pagels took over many of his management responsibilities.
Also, Charles no longer reported directly to Jamison, but he reported to
Pagels. When Charles complained about the loss of his management
responsibilities, a meeting was held with Pagels and Jamison, who told him
that the change was the result of his historic issues of internal and external
communication, inability to work positively with other employees, and lack
of reception to feedback. (Doc. 19 at PgID 431). Pagels and Charles
began weekly one-on-one meetings to address concerns, and Pagels
believed that Charles was not receptive to criticism. Charles testified that
he was required to both train and report to Pagels. Charles alleges that the
hiring of Pagels was a demotion, and that the decision to strip him of his
management responsibilities and assign those duties to Pagels, was
racially discriminatory.
Charles relies on four emails from Jamison and Pagels, which
praised him for certain discrete tasks performed in June, 2015, December,
2017 and January, 2018. (Doc. 17, Ex. 17-20). Charles also relies on four
emails from customers praising him for his performance during
installations. (Doc. 17, Ex. 13-15). Charles claims he never received
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written discipline or a performance improvement plan, and cites to the fact
that he received a $2,500 bonus in 2014 for his “excellent performance.”
(Doc. 17, Ex. 10). Although he received the bonus, his 2014 evaluation by
Jamison was somewhat negative, noting that Charles needed to “improve
on communication skills with fellow team members and co-workers,” and
that action was required in teamwork and that “communications between
TS [technical services] team as a group needs to improve as well as other
departments.” (Doc. 15, Ex. 10). The 2014 evaluation also noted that
“Communication skills are still lacking.” Id. Pagels testified that he
disciplined Charles in writing five to ten times, once because a customer
asked that he be removed from their account because he was
condescending, accusatory, and negative towards their staff, another time
because he acted unprofessionally towards another manager and
threatened Pagels by shouting and pointing his finger at him. (Doc. 19 at
PgID 434-35). In 2016, his superiors wanted him to engage a peer review,
known as a 360, to address his performance deficiencies, but he refused to
participate in the review.
In February, 2016, Charles began working part-time for one of
MedTest’s customers, Dr. Lesly Pompy. Shortly thereafter, Pagels
discovered Charles’ outside employment when visiting Dr. Pompy to assist
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with training on products purchased from MedTest. Pagels testified that he
was surprised to find Charles working for a MedTest customer, and that
upon their run-in, Charles said, “I’m busted.” (Doc. 15, Ex. 11 at 75).
Although MedTest did not have a formal written policy prohibiting its
employees from accepting outside employment with its customers, Pagels
testified that such a prohibition was common in the industry, doing so
posed a conflict-of-interest, and at the very least, showed poor judgment.
Allen testified that Charles’ outside employment posed a conflict-of-interest
because Charles oversaw the installation of MedTest equipment from the
customer’s perspective, which could risk their accreditation in the lab.
(Doc. 19 at PgID 197).
On March 8, 2016, Charles met with Allen and complained that the
2015 hiring of Pagels which stripped him of some of his managerial
responsibilities, and his 2014 performance evaluation, were unfair,
although Allen denies that Charles specifically identify racial discrimination
as the reason for his low marks. Allen spoke to Jamison after their
meeting, who reported that Charles continued to receive negative feedback
from co-workers and customers who complained that he was
condescending. The next day, Allen, Jamison and Pagels met with
Charles to discuss his poor performance and recommended that he
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participate in the 360 peer review process. On March 9, 2016, Charles
went into the office of human resources manager, Rhonda Bloomfield, and
complained of racial discrimination. In an email dated March 10, 2016,
Charles refused to participate in the peer review, stating, “I’ve decided that
a 360 survey will not benefit me based on my distrust and varied
recollections of incidents from my managers.” (Doc. 15, Ex. 15).
On March 25, 2016, after Allen learned of Charles’ outside
employment with Dr. Pompy, Allen met with Charles and Bloomfield. Allen
expressed his concern that Charles’ outside position presented a conflictof-interest. According to Bloomfield’s deposition, Charles complained to
her of discrimination but denied that it was racially based. (Doc. 15, Ex. 16
at 29, 33-34).
Allen, with input from Pagels and Jamison, decided to terminate
Charles, and notified him of his termination on March 28, 2016. The
reason given for his termination was that his employment with Dr. Pompy
constituted a conflict-of-interest, and he had refused to participate in the
360 peer review evaluation which was intended to address his continued
performance and communication deficiencies. (Doc. 15, Ex. 13 at 45).
On May 30, 2018, after this matter had been fully briefed and the time
period for filing a response having expired, Charles submitted the full
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deposition transcripts of himself, Jamison, Pagels, Allen, Bloomfield, and
Thaddeas as exhibits in support of his response to MedTest’s motion for
summary judgment. There is no explanation for the late filing of these
exhibits as Charles’ deposition was taken in June, 2017, and the rest of the
witnesses were deposed in November, 2017. Nevertheless, the court has
considered these late filed exhibits.
II. Standard of Law
Federal Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith 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 judgment as a matter of law." See Redding v.
St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has
affirmed the court's use of summary judgment as an integral part of the fair
and efficient administration of justice. The procedure is not a disfavored
procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
see also Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir.
1995).
The standard for determining whether summary judgment is
appropriate is "'whether the evidence presents a sufficient disagreement to
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require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.'" Amway Distrib. Benefits Ass’n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all
reasonable inferences must be construed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he
mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original);
see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907
(6th Cir. 2001).
If the movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial." First Nat'l
Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations
or denials in the non-movant's pleadings will not meet this burden, nor will
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a mere scintilla of evidence supporting the non-moving party. Anderson,
477 U.S. at 248, 252. Rather, there must be evidence on which a jury
could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing
Anderson, 477 U.S. at 252).
III. Analysis
A.

Race and National Origin Discrimination
The court first addresses Charles’ claims of race and national origin

discrimination. A plaintiff asserting a race and national origin discrimination
claim must produce either direct or indirect evidence of bias. Laster v. City
of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (Title VII); Hazle v. Ford
Motor Co., 464 Mich. 456, 462-63 (2001) (ELCRA). In this case, Charles
seeks to proceed under the indirect method. For the reasons discussed
below, Charles has failed to raise a genuine issue of material fact in
support of his race and national origin discrimination claim. Accordingly,
MedTest is entitled to summary judgment.
Absent direct evidence of discrimination, claims brought pursuant to
Title VII and ELCRA are subject to the McDonnell Douglas/Burdine tripartite burden-shifting framework. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973); Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S.
248, 252-56 (1981). Under this framework, the plaintiff bears the initial “not
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onerous” burden of establishing a prima facie case of discrimination by a
preponderance of the evidence. Burdine, 450 U.S. at 253. To establish
employment discrimination, a plaintiff must demonstrate that (1) he is a
member of a protected class, (2) he was qualified for his job; (3) he
suffered an adverse employment decision; and (4) he was treated
differently than similarly situated non-protected employees.” Laster, 746
F.3d at 727. Should plaintiff satisfy the above elements, defendant has the
burden of proving a legitimate, nondiscriminatory business reason for
terminating plaintiff. Jackson v. VHS Detroit Receiving Hosp., 814 F.3d
769, 778 (6th Cir. 2016). “Once the employer has come forward with a
nondiscriminatory reason for firing the plaintiff, the plaintiff must identify
evidence from which a reasonable jury could conclude that the proffered
reason is actually a pretext for unlawful discrimination.” Id. at 779. (citation
and internal quotation marks omitted).
In this case, MedTest focuses on the fourth factor, and argues that
Charles has failed to show that he was treated differently than similarly
situated non-protected employees. In order to be similarly situated, the
employees must have engaged in misconduct of comparable seriousness.
Jackson, 814 F.3d at 777. The allegedly similarly situated employees must
have “engaged in the similar conduct, without such differentiating or
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mitigating circumstances that would distinguish their conduct or the
employer’s treatment of them for it.” McMillan v. Castro, 405 F.3d 405, 413
(6th Cir. 2005).
In response to MetTest’s motion for summary judgment, Charles
relies solely on the hiring of Pagels to support his race or national origin
discrimination prima facie case. But the court finds it appropriate to also
consider his argument that other employees were allowed to accept
outside employment with MedTest’s customers without repercussions, an
argument he proffers to demonstrate pretext, as part of the prima facie
analysis. Neither theory supports Charles’ case here.
First, the court considers whether MedTest’s hiring of Pagels, a
Caucasian, supports his prima facie case. MedTest argues that the hiring
of Pagels and assigning him some of Charles’ responsibilities, is not an
“adverse employment action” within the meaning of Title VII, because
Charles retained the same pay, job title, rank relative to his subordinates,
and did not suffer significantly diminished responsibilities. See White v.
Burlington & Sante Fe R. Co., 364 F.3d 789, 797 (6th Cir. 2004). For
purposes of this motion, the court assumes without deciding that assigning
some of Charles’ responsibilities to Pagels constituted an “adverse
employment action.” Even so, Charles has failed to show that he was
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treated differently than similarly situated employees, as he has not shown
that any other employees with similar communication problems with coworkers did not have certain of their managerial tasks reassigned. Charles
argues that because he was “excelling” in his position, the hiring of Pagels
and his assumption of many of Charles’ managerial responsibilities was
discriminatory. But the evidence shows that Charles had communication
problems with his co-workers which MedTest noted beginning in his 2014
evaluation.
Second, the court considers whether MedTest improperly singled out
Charles for his outside employment with a MedTest customer, and allowed
other employees to work for its customers without repercussion. Charles
argues that MedTest had no formal written policy precluding outside
employment that posed a risk of a conflict-of-interest. But Pagels testified
that it is commonplace in the industry to forbid outside employment with a
company that could influence sales, and that his prior employers at
Siemens and Abbott and Bayer followed that policy strictly. (Doc. 15, Ex.
11 at 77). Charles argues that MedTest treated some employees who had
similar outside employment differently: (1) Larry Noel, owns a business
with his wife that deals products that are sold from MedTest; (2) Howard
Lee, worked for Clinitox and owned SeroClinix, and (3) Plaintiff himself
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worked part-time in another position during his time at MedTest’s
predecessor, Polymedco. But Charles has not shown that these
individuals were “similarly situated” in “all relevant respects.” Mitchell v.
Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
Noel’s wife owns Core. Core was established by Pointe Scientific
(“Pointe”) as a distributor while Noel was working for Pointe. MedTest
purchased Pointe with full knowledge that Noel’s wife owns Core. Noel did
not and does not work for the company. Lee was CEO of Clinitox when
they were purchased by MedTest. Lee also owned SeroClinix, but that
company was involved solely in veterinary testing, an area in which neither
Clinitox nor MedTest participates as they test solely on humans. Charles’
argument that he also had outside part-time employment while at
Polymedco is not relevant as MedTest purchased Polymedco and was his
employer when he accepted outside employment with Dr. Pompy.
Even if Charles could prove that he was treated differently than
similarly situated employees, MedTest has come forward with proof that it
had a legitimate nondiscriminatory reason for his discharge. MedTest has
demonstrated that Charles was terminated for poor performance, for
refusing to participate in the peer review process, as well as for accepting
outside employment that presented a conflict-of-interest. Charles argues
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that the reasons given for his termination by Allen, Jamison, and Pagels,
conflict and thus establish pretext. Not so. First, Allen was the final
decision maker who based his decision based on input from Jamison and
Pagels. Second, the reasons given do not conflict. Jamison referred only
to Plaintiff’s refusal to participate in the 360 evaluation, and true enough,
this was one of the reasons for his termination. Pagels referred to both his
ongoing performance issues and refusal to participate in the 360
evaluation. Indeed, these were also reasons given by Allen. There simply
is no inconsistency, and Plaintiff has failed to rebut Defendant’s stated
legitimate reasons for terminating him.
Plaintiff argues he was a stellar employee since 2011, but in fact,
Plaintiff’s poor performance at MedTest was noted shortly after he
relocated to Michigan, and his deficient performance was noted in 2014
and 2015 prior to his discharge. Plaintiff also argues that his refusal to
participate in the 360 peer review process was not a legitimate reason for
his discharge as MedTest does not have a formal policy regarding that
program which had not been used for other employees. But Plaintiff has
not shown that other employees with similar deficiencies to him were
treated more favorably, or that any other employees were asked to
participate in a performance improvement process and refused to do so.
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Finally, Plaintiff argues that his acceptance of outside employment for a
customer was not a legitimate reason for his discharge as other employees
did likewise, but were not terminated. The court has already addressed
this claim and found it to be without merit. For the foregoing reasons,
summary judgment shall enter for MedTest on Charles’ race and national
origin discrimination claims.
B.

Retaliation Claims
The court turns now to Charles’ claim he was discharged in retaliation

for making oral complaints to human resources personnel on two
occasions. Title VII prohibits an employer from retaliating against an
employee “because he has made a charge” of discrimination. 42 U.S.C. §
2000e-3(a). Michigan’s ELCRA includes a similar provision, see Mich.
Comp. Laws § 37.2701(a) which is analyzed under the same standard.
Kuhn v. Washtenaw Cty., 709 F.3d 612, 627 (6th Cir. 2013). As with a
discrimination claim, a plaintiff can prove retaliation with direct or
circumstantial evidence. Again, Charles seeks to proceed under the
circumstantial method. Once again, the court analyzes the claim under the
McDonnell Douglas framework.
Under that paradigm, a plaintiff has the initial burden to establish a
prima facie case of retaliation under Title VII by establishing that: (1) he
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engaged in protected activity when he made his discrimination complaint;
(2) defendant knew about his exercise of the protected activity; (3)
defendant thereafter took adverse employment action against him; and (4)
there was a causal connection between the protected activity and the
adverse employment action. Taylor v. Geithner, 703 F.3d 328, 336 (6th
Cir. 2013). If plaintiff establishes a prima facie case, the burden of
production shifts to defendant to “articulate some legitimate,
nondiscriminatory reason for [its action].” McDonnell Douglas, 411 U.S. at
802. If the defendant shows a legitimate nondiscriminatory reason for the
adverse employment action, the burden shifts back to the plaintiff to prove
that the proffered reason was pretext for discrimination. A plaintiff can
prove pretext three ways: “by showing that the proffered reason (1) has no
basis in fact, (2) did not actually motivate the defendant's challenged
conduct, or (3) was insufficient to warrant the challenged conduct.”
Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (citation and
internal quotations omitted).
Here, Charles relies entirely on the proximity in time between his
complaints to human resources personnel and his referral to peer review,
and termination, to prove retaliation. Although temporal proximity standing
alone is not usually enough to establish causation, where the protected
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activity is acutely near in time to the adverse employment action, the close
proximity may be enough to permit an inference of retaliation. Montell v.
Diversified Clinical Servs., 757 F.3d 497, 505-08 (6th Cir. 2014). But in the
usual case, in order to show a causal connection, a plaintiff must show “a
temporal connection coupled with other indicia of retaliatory conduct.” Little
v. BP Exploration & Oil Co., 265 F.3d 357, 364 (6th Cir. 2001). Here,
Charles argues that Allen learned of his second complaint of racial
discrimination on the same day Allen decided to terminate him. Charles
also argues that two days after his first complaint of racial discrimination,
Allen asked Charles to undergo peer review. The temporal proximity
between Charles’ protected activity and termination is not enough to create
an inference of retaliation sufficient to survive MedTest’s motion for
summary judgment. Also, Plaintiff’s complaints to supervisor Jamison that
stripping him of his management responsibilities was unfair took place
nearly one year before his termination. Even if Charles can show a close
proximity between his complaints of racial discrimination and his
termination, his retaliation claims under state and federal law still fail.
This is true because where an employer comes forward with proof
that it had an intervening legitimate reason to take an adverse employment
action against the plaintiff, this dispels whatever inference might be
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gleaned from the temporal proximity of the adverse employment action and
the employee’s complaints of discrimination. Kuhn, 709 F.3d at 628.
Charles’ performance problems were documented some two years prior to
his complaints of racial discrimination, and he began his outside
employment which posed a conflict-of-interest prior to his complaints of
racial discrimination. Charles has failed to show that the reasons given for
his termination were pretextual. For these reasons, MedTest is entitled to
summary judgment on Charles’ retaliation claims.
IV. Conclusion
For the reasons set forth above, Defendant’s motion for summary
judgment (Doc. 15) is GRANTED.
IT IS SO ORDERED.
Dated: August 21, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 21, 2018, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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