Thomas v. Macomb County Community Mental Health Services

Filing 15

OPINION AND ORDER Granting 9 Motion for Summary Judgment. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROSA THOMAS,
Plaintiff,
Case Number 17-10456
Honorable David M. Lawson

v.
MACOMB COUNTY, a/k/a MACOMB
COUNTY COMMUNITY MENTAL HEALTH
DIVISION and JOHN KINCH,
Defendants.
____________________________________/

OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Plaintiff Rosa Thomas filed a complaint alleging that she was constructively discharged by
the defendants from her job as a Clinical Strategist and Improvement Director at Macomb County,
Michigan’s Community Mental Health Division. That followed a disciplinary proceeding when she
was accused of granting access to medical records in violation of the Health Insurance Portability
and Accountability Act (HIPAA) and given a two-day suspension, which was later reversed. She
contends that her discharge amounted to national origin discrimination in violation of Title VII of
the Civil Rights Act of 1964 (she was born in Peru), and violated her right to procedural due process.
After a full opportunity for discovery, the defendants have moved for summary judgment. The
undisputed facts show that Ms. Thomas was not constructively discharged; she quit. There is no
evidence that any of the defendants’ actions were motivated by her Peruvian ancestry. And she was
afforded due process during disciplinary proceedings. The Court will grant the defendants’ motion
and dismiss the case.

I.
The basic facts of the case are undisputed. Plaintiff Rosa Thomas was born in Peru and
moved to the United States after receiving the Peruvian equivalent of a Master’s Degree in
Psychology. She was issued a limited license to practice by the American Board of Psychology.
In August 2016, she was hired by defendant Macomb County Community Mental Health Division
(MCCMHD), where she was employed as a Director of Clinical Strategies and Improvements.
One of Thomas’s duties was to handle requests by various outside entities for access to the
County’s database of protected health information, which is maintained in a computer system known
as “FOCUS.” In order to receive access, such entities were required to execute a “Business
Associate Agreement” and a “Qualified Service Agreement” with the County, which governed their
use of any information to which they were allowed access. Among other things, those agreements
required the entities to ensure that they requested and used only the “minimum necessary” access
to the FOCUS system needed to perform their appointed tasks. Thomas testified that it was her
understanding, and the practice and policy of the County, that as long as those agreements were in
place, the entities would be allowed access to those portions of the system that they needed in order
to complete whatever tasks the County had retained them to perform.
The FOCUS system regulates access by users based on which “service area” is assigned to
that user; those service areas are designated with labels such as “clinical,” “claims,” and “audit.”
An entity’s access to the “clinical” and “claims” service areas can be restricted on a record-byrecord basis. However, the system apparently is not capable of imposing discrete record restrictions
for the “audit” service area. A user granted access to that service area is allowed to access all files

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stored in the system without restriction, regardless of how many files they actually need to review
to perform their task.
On April 12, 2016, a representative of Molina Healthcare contacted the County and requested
access to seven specified files in the FOCUS system, for the purpose of performing an audit. The
request was routed to the plaintiff, and, after she determined that Molina had executed the required
agreements, she issued a password for the system that allowed Molina’s representative to access the
“audit” service area. Because of the system characteristics explained above, that setting allowed
Molina to view all the electronic records stored in the system.
Some time later, MCCMHD’s Corporate Compliance Officer, Kimberly Cope, learned that
Molina had been granted access to the “audit” service area in FOCUS, and she undertook an
investigation to determine if the access properly was granted. As a result of that investigation, on
May 27, 2016, Thomas received a letter notifying her that she would have to appear at a disciplinary
hearing to answer a charge that she improperly allowed an external contractor access to all records
in the FOCUS database. The letter stated the charge as follows:
On or around April 12, 2016 and at your direction as Program Director and authority
for [the] Clinical Services / Quality Improvement Department, you authorized and
arranged for a Molina contract agent to have view access to the entire Macomb
County CMH FOCUS electronic medical record.
Your decisions in this regard are deemed to be violations of HIPAA regulations to
protect the privacy of individually identifiable health information. Further, your
actions are violations [of the] Michigan Mental Health Code [and] 45 C.F.R.
160.203(b) and 42 U.S.C. 1320d-2(c)(2).
Thomas appeared at the hearing, where she was represented by counsel (also her attorney
of record in this case). She contends that she was “ambushed” at the hearing when she was required
to respond to further charges that her handling of the access control request constituted a violation

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of the defendant’s policy for handling protected health information; that charge was not mentioned
in the notice letter. At the hearing, the hearing officer discussed the information gathered in the
investigation, Thomas spoke on her own behalf, and her attorney argued orally against the
imposition of discipline. At the end of the hearing, those present were asked if they had “anything
else to add,” and presumably answered in the negative. After the hearing, Thomas received a letter
notifying her of the decision, which stated:
Upon completion of the investigation, the conclusion is that you did authorize for a
Molina contract agent to have access to the Macomb County CMH FOCUS
electronic medical record, and said access to the records was in violation of standards
for release of Protected Health Information. For this reason, you are being issued a
two (2) day non-paid disciplinary suspension for June 09, 2016 and June 10, 2016
with a return to work dated of June 13, 2016.
If you are involved in similar misconduct in the future, you will be subject to
progressive discipline up to and including discharge.
On June 8, 2016, Thomas asked to meet with Karen Bathanti, the defendant’s Director of
Human Resources and Labor Relations, to discuss the hearing process. Thomas informed Bathanti
at that time that she was looking for a new job.
On June 14, 2016, Thomas submitted a seven-page appeal letter challenging the disciplinary
decision, in which she asserted that she was not afforded sufficient due process, she should not have
been subjected to any discipline because it was determined at the hearing that no HIPAA violation
occurred, and she was treated differently for handling the access control request the same way than
other (non-minority) employees had handled such requests, citing one example. On November 2,
2016, Eric Herppich, the County’s Director of Human Resources and Labor Relations (the record
indicates that Bathanti and Herppich both held this title; it is unclear whether Herppich was a peer
or successor to Bathanti, or whether the County denotes all HR officers as “directors.”), sent a letter

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to Thomas stating that he had “reviewed your June 15, 2016 appeal of the circumstances that caused
you to receive a two (2) day disciplinary suspension and concluded that the discipline will be
removed from your file.”
Herppich did not elaborate in his letter on the basis for the reversal, but at his deposition he
testified that he decided to rescind the discipline based on his finding that the sanction for violating
a supposed access control policy was unfair, where there was no formal policy on point:
A.

Q.
A.

A.

I recall when I read the discipline letter for Ms. Thomas that the reason she
was disciplined was not because of a HIPAA violation, it was discipline as
it relates to a policy violation, if I recall. So I was focused on what was the
policy violation. I really didn’t spend any time dealing with the HIPAA,
because that wasn’t the reason why she was disciplined.
All right, fair enough. So what was the policy that you were looking at?
I’m not really sure I ever got a policy that articulated the reason why Ms.
Thomas was disciplined, at least to my satisfaction.
...
My . . . view of the issue was that [there wasn’t] any clear process [or] policy
expectation as to how granting permission was supposed to occur. . . . So I
really, at the end of the day, felt that lacking that clear direction, that
discipline for Ms. Thomas wasn’t fair.

Thomas testified at her deposition that she was distraught after she received the June 7, 2016
disciplinary letter. However, she conceded that her job duties, position, and compensation were not
altered as a result of the disciplinary proceeding, beyond the sanction of two-days pay (which
appears to have been restored in full after Thomas prevailed on her appeal). When asked to describe
“what became intolerable” about her working conditions after she was disciplined, Thomas testified
as follows:
Everyone was treating me differently.
...
I couldn’t go to meetings without people looking at [me], making comments. I’m not
saying it was just one person. I couldn’t go to the meetings anymore. I was coming
to work and sitting and crying my eyes out before I went into my office because my
employees would say, are you okay? And it was like I had — I couldn’t face
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anybody. I couldn’t look at the face of anybody. And, you know, I had pride [in]
myself. I work. I went to school. I came to this country. I decide[d] to work using
my English skills rather than segregating myself with Hispanic speaking people.
And all of that was good. And I had to go every single day and have to have my
employees in my office come and give me a hug and said, it’s going to be okay,
Rosa. I’m supposed to do that for them. I’m suppose[d] to mentor them. I’m not
supposed to [be] breaking down. And I had to eat every one of my tears and go
downstairs and [sit] in my car by myself and said, it’s going to be okay. And then
the day I got a new job, I had to tell them what happened. I had to.
...
It was just not — when you see people texting each other and my assistant came and
said, I think they are texting each other about what happened.
On August 4, 2016, while her appeal of the disciplinary decision still was pending, Thomas
voluntarily resigned from her job.
Thomas made a charge of discrimination with the Equal Employment Opportunity
Commission. After she received her right-to-sue letter, she filed her complaint in this case, alleging
race or national origin discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq. (Count I),
procedural due process violations via 42 U.S.C. § 1983 (Count II), and intentional infliction of
emotional distress (Count III). The parties have agreed to dismiss Count III. The plaintiff opposes
dismissal of Counts I and II.
II.
Summary judgment is appropriate “if 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.” Fed. R. Civ. P. 56(a).
Under Rule 56, the party bringing the summary judgment motion has the initial burden of informing
the court of the basis for its motion and identifying portions of the record that demonstrate the
absence of a genuine dispute over material facts. Mt. Lebanon Pers. Care Home, Inc. v. Hoover
Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002). If the party opposing the motion contends facts
are in dispute, she may not “rely on the hope that the trier of fact will disbelieve the movant’s denial
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of a disputed fact” but must make an affirmative showing with proper evidence to defeat the motion.
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). Nor may she “simply show that
there is some ‘metaphysical doubt as to the material facts.’” Highland Capital, Inc. v. Franklin
Nat’l Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)) (internal quotation marks omitted).
Instead, the opposing party must designate specific facts in affidavits, depositions, or other
factual material showing “evidence on which the jury could reasonably find for the plaintiff.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Those facts must be “established by
evidence that will be admissible at trial.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir.
2009) (citing Fed. R. Civ. P. 56(e)(2)) If the non-moving party, after sufficient opportunity for
discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Thus, the mere existence of a scintilla of
evidence in support of the [opposing party]’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the [opposing party].” 350 F.3d at 546 (quoting 477
U.S. at 252) (quotations omitted).
A.
The Title VII discrimination claim requires that the plaintiff establish an adverse
employment action. Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004). The procedural due
process claim likewise mandates proof of a life, liberty, or property interest deprivation. Waeschle
v. Dragovic, 576 F.3d 539, 544 (6th Cir. 2009). Thomas contends she can satisfy both elements by
showing that she lost her job through constructive discharge. The evidence does not sustain that
position.

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“The constructive-discharge doctrine contemplates a situation in which an employer
discriminates against an employee to the point such that [her] ‘working conditions become so
intolerable that a reasonable person in the employee’s position would have felt compelled to
resign.’” Green v. Brennan, --- U.S. ---, 136 S. Ct. 1769, 1776 (2016) (quoting Pennsylvania State
Police v. Suders, 542 U.S. 129, 141 (2004)). “When the employee resigns in the face of such
circumstances, Title VII treats that resignation as tantamount to an actual discharge.” Id. at 1776-77
(citing Suders, 542 U.S. at 142-143). “A claim of constructive discharge therefore has two basic
elements. A plaintiff must prove first that [s]he was discriminated against by [her] employer to the
point where a reasonable person in [her] position would have felt compelled to resign,” and “[s]he
must also show that [s]he actually resigned.” Id. at 1777. “To demonstrate a constructive discharge,
[the plaintiff] must adduce evidence to show that (1) the employer deliberately created intolerable
working conditions, as perceived by a reasonable person, and (2) the employer did so with the
intention of forcing the employee to quit.” Laster v. City of Kalamazoo, 746 F.3d 714, 727-28 (6th
Cir. 2014).
The Sixth Circuit has adopted the factors articulated by the Fifth Circuit for determining
when an employer can be said to have intentionally created intolerable working conditions. Logan
v. Denny’s, Inc., 259 F.3d 558, 569 (6th Cir. 2001). The court explained:
Whether a reasonable person would have felt compelled to resign depends on the
facts of each case, but we consider the following factors relevant, singly or in
combination: (1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to
work under a younger supervisor; (6) badgering, harassment, or humiliation by the
employer calculated to encourage the employee’s resignation; or (7) offers of early
retirement or continued employment on terms less favorable than the employee’s
former status.

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Id. at 569 (quoting Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)); see also Laster, 746
F.3d at 728.
Thomas has failed to point to any circumstances she had to endure that could sustain her
claim that she was subjected to an objectively intolerable work environment that left her with no
option but to resign. She has not offered any evidence that she suffered any tangible change in her
circumstances such as a demotion, reduction in pay or responsibility, reassignment to different duties
or a different supervisor, or that the defendant confronted her with any terms for her to retire or be
hired into a less attractive position. Thomas does insist that she was subjected to “badgering,” or
“harassment” by co-workers, but none of that conduct has or can be attributed to her employer.
Moreover, most of her testimony on point in fact attested to behavior that was supportive,
conciliatory, and sympathetic toward her. And the plaintiff did not identify any actual specific
comments made by anyone that were in any way critical or degrading. Instead, her testimony only
vaguely alludes to co-workers “texting” or “making comments,” which she did not describe, and that
she supposed were related to her discipline.
The plaintiff’s testimony suggests, at most, that she was upset about the fact that she was
disciplined and her sensibilities were deeply offended. But she has failed to identify any pervasive
conduct by any of her supervisors or co-workers that could be construed as harassment meant to
force her to resign. She is not close to proving that her employer deliberately created the conditions
she described, or that her employer wanted to force her to quit.
Even if the co-worker chatter rose to the level of badgering or even harassment — which it
did not — the Sixth Circuit has held that, where that is the only allegedly intolerable circumstance,
the relevant conduct must be so pervasive and persistent that it continues unabated for a significant

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time. See e.g., Clay v. United Parcel Service, Inc., 501 F.3d 695, 707 (6th Cir. 2007) (upholding
district court’s determination that the harassment which included 15 specific incidents over a
two-year period “did not rise to the level of severity or pervasiveness that would unreasonably
interfere with her ability to work.”); Burnett v. Tyco Corp., 203 F.3d 980, 984-85 (6th Cir. 2000)
(six-month period involving three sexually offensive remarks by supervisor, including a battery, did
not constitute pervasive conduct); Morris v. Oldham County Fiscal Court, 201 F.3d 784, 790 (6th
Cir. 2000) (teasing, comments, and isolated incidents, including an unwanted sexual advance, did
not alter terms and conditions of employment); Dotson v. Norfolk Southern R.R. Co., 52 F. App’x.
655, 659 (6th Cir. 2002) (conduct including coworker’s persistent use of “KKK” instead of his own
initials on work documents, coworker’s use of term “Ungawa” from Tarzan movies as salutation,
coworkers’ use of names such as “tar baby” and harsh treatment of plaintiff, managerial use of
janitorial service that employed worker who harassed plaintiff, and allegations of disparate
discipline and promotional practices — all still insufficient to satisfy severity component of claim);
Bowman v. Shawnee State Univ., 220 F.3d 456 (three of five incidents which “contained an element
of physical invasion” were insufficiently severe or pervasive).
Here, the plaintiff does not dispute that she told the defendant’s HR officer that she was
seeking a new job the day after she received the disciplinary letter, and that she voluntarily resigned
less than two months later, on August 4, 2016. The plaintiff has not identified when any of the
supposed co-worker “texting” and “comments” occurred, and her testimony certainly does not
suffice to show that any such conduct occurred for a significant time; by her own account, it only
commenced after her disciplinary hearing, and it persisted for an unspecified period lasting at most
no more than two months. On far more compelling facts the Sixth Circuit readily has found no

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evidence of badgering or harassment sufficient to be construed as objectively intolerable. See
Brister v. Michigan Bell Telephone Co., 705 F. App’x 356, 360 (6th Cir. 2017) (finding insufficient
evidence of constructive discharge where the record included “(1) testimony from a fellow manager
that he found Jeup crying from Keeling’s unfair treatment; (2) testimony from a fellow manager that
he observed Keeling harassing and treating Jeup abusively; (3) the fact that within a month of
becoming Jeup’s supervisor, Keeling began targeting her for humiliation and criticism at meetings;
(4) comments from Keeling to Jeup degrading her and calling her stupid during their daily coaching
sessions; (5) comments from Keeling to Jeup telling her that everyone in the office hated her and
did not want her there; (6) comments from Keeling telling Jeup that she needed to seek
psychological help and seek help from the employee assistance program; and (7) comments from
Keeling to Jeup, stating ‘it’s them or you’ and that she needed to ‘learn to play the game’”).
Similarly, where, as here, the plaintiff presented evidence of, at most, only fleeting and isolated
unfavorable comments, the court of appeals has found that the record was insufficient to sustain any
claim of constructive discharge. See Weigold v. ABC Appliance Co., 105 F. App’x 702, 708-09 (6th
Cir. 2004) (observing that if the supervisor had “persisted in making these remarks over the course
of [the plaintiff’s] employment, a jury could infer that [the supervisor] was doing everything in his
power to fire her. But the fleeting nature of these comments and [the plaintiff’s] hasty response
preclude our conclusion that they constituted a constructive discharge”).
The undisputed evidence does not support an inference that Thomas was constructively
discharged from her county job. Therefore, she has not established an essential element of her
claims under Title VII or section 1983.

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B.
The proofs are wanting on other aspects of the plaintiff’s claims as well.
1.
To prove national origin discrimination, the plaintiff must offer evidence to establish a
genuine fact question on these elements: “(1) she is a member of a protected group; (2) she was
subjected to an adverse employment decision; (3) she was qualified for the position; and (4) she was
replaced by a person outside the protected class, or similarly situated non-protected employees were
treated more favorably.” Peltier, 388 F.3d at 987. Thomas has not shown an alternate form of
adverse action.
“An adverse employment action is an action by the employer that constitutes a significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits.” White
v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008) (internal quotation marks omitted).
“A ‘mere inconvenience or an alteration of job responsibilities’ . . . is not enough to constitute an
adverse employment action.” White v. Burlington Northern & Santa Fe Railway Co., 364 F.3d 789,
797 (6th Cir. 2004) (en banc) (quoting Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 886
(6th Cir. 1996)).
Thomas certainly was upset over the investigation into a possible HIPAA violation, which
called into question her competence, and even perhaps, her integrity. But it is well established that
the investigation itself cannot suffice to show that the plaintiff suffered any “adverse action”
sufficient to sustain her discrimination claim.

“[E]mployer investigations into suspected

wrongdoing, standing alone, are not generally considered actionable adverse employment actions,”

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particularly where the “proposed discipline was not implemented.” Agrawal v. Montemagno, 574
F. App’x 570, 576 (6th Cir. 2014). The initial disciplinary finding also was not an adverse action,
because it later was reversed on appeal (after the plaintiff voluntarily resigned, but well before this
litigation was commenced). See Benison v. Ross, 765 F.3d 649, 659 (6th Cir. 2014) (“The negative
recommendations of the EAS Department and Dean Davison regarding Kathleen’s application for
a promotional pay supplement are not adverse actions because Kathleen resigned before CMU made
a final decision to deny her request for a salary increase.”).
2.
Nor has she established a deprivation of a property right without due process. She has
brought that claim via 42 U.S.C. § 1983, which requires that she show “(1) the deprivation of a right
secured by the Constitution or laws of the United States; (2) caused by a person acting under the
color of state law.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015) (citing Sigley v. City of
Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006)). The constitutional right she asserts emanates
from the Fourteenth Amendment’s Due Process Clause. That Clause “protect[s] both procedural
and substantive due process rights.” Puckett v. Lexington-Fayette Urban County Gov’t, 833 F.3d
590, 604 (6th Cir. 2016) (citing Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 572-74 (6th Cir.
2008); Wojcik v. City of Romulus, 257 F.3d 600, 610-11 (6th Cir. 2001)). But to establish a
procedural due process violation, the plaintiff must show that she (1) had a life, liberty, or property
interest protected by the Constitution; (2) was deprived of that interest by a state actor; and (3) was
not afforded timely and adequate process under law. Waeschle v. Dragovic, 576 F.3d 539, 544 (6th
Cir. 2009).

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Federal courts have recognized that state civil servants may have a property interest in
continued employment under certain circumstances and must be afforded due process before being
discharged. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985); Relford v.
Lexington-Fayette Urban County Gov’t, 390 F.3d 452, 460 (6th Cir. 2004) (“Under state law,
government and civil service employees may have a property right in their continued
employment.”). Public employees with a property interest in their jobs generally must have a
hearing before termination and afterward. Pucci v. Nineteenth Dist. Ct., 628 F.3d 752, 766-67 (6th
Cir. 2010) (“‘For a public employee with a property interest in continued employment, due process
includes a pre-termination opportunity to respond, coupled with post-termination administrative
procedures.’” (quoting Silberstein v. City of Dayton, 440 F.3d 306, 315 (6th Cir. 2006)).
The Sixth Circuit has observed that “[p]re-termination hearings ‘need not be elaborate.’”
Mitchell, 375 F.3d at 480 (quoting Loudermill, 470 U.S. at 545). Nonetheless, “[t]he tenured public
employee is entitled to oral or written notice of the charges against him, an explanation of the
employer’s evidence, and an opportunity to present his side of the story.” Loudermill, 470 U.S. at
546; see also Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (noting that the fundamental
requirement of procedural due process is that an individual be given an opportunity to be heard at
a meaningful time and in a meaningful manner). Pre-termination hearings have been described as
an “initial check against mistaken decisions.” Loudermill, 470 U.S. at 545.
Thomas’s hearing served precisely that purpose. The only procedural defect that she
identified in her disciplinary proceeding was the supposed inaccuracy of the charging letter, which
stated that she would have to answer for a “HIPAA violation,” when she actually was called to
account for a “policy violation.” But, regardless of any defect in the hearing notice, it is undisputed

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that the plaintiff well understood the nature of the charges against her, at least at the hearing, and
she was afforded ample opportunity to respond to the actual charge after the hearing, through the
course of her appeal (on which she ultimately prevailed). See Morrison v. Warren, 375 F.3d 468,
476 (6th Cir. 2004) (“We hold that Morrison had plenty of time during the arbitration . . . to know
of and rebut the second charge against him.”).
Moreover, Thomas had access to an effective post-hearing procedure: her appeal in which
she prevailed. Courts in our circuit have recognized that “post-termination procedures [are]
inextricably intertwined with the scope of pre-termination procedures.” Carter v. Western Reserve
Psychiatric Habilitation Center, 767 F.2d 270, 273 (6th Cir. 1985) (per curiam). Here, any
unfairness that may have flowed from the notice of charge certainly was remedied by the
defendant’s post-deprivation procedure. Therefore, in addition to failing to identify any adverse
action that actually was imposed as a result of the disciplinary investigation, Thomas also has failed
to point to any cognizable procedural defect by which she was deprived of adequate notice and an
opportunity make a meaningful and timely presentation of her case.
III.
The parties have agreed that the plaintiff’s claim for intentional infliction of emotional
distress should be dismissed. The plaintiff has brought claims of improper discipline and wrongful
discharge, but she has failed to present any evidence that she ever suffered any actual discipline, or
that she was subjected to any objectively intolerable conditions sufficient to sustain her wrongful
termination claim under a constructive discharge theory. Nor has she shown that she was deprived
of any procedural rights mandated by the Constitution. The undisputed facts demonstrate that the
defendants are entitled to a judgment as a matter of law.

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The Court finds that the facts and legal arguments are adequately presented by the papers
and the decision process would not be significantly aided by oral arguments; therefore, the motion
will be resolved on the briefs submitted pursuant to E.D. Mich. L.R. 7.1(e)(2).
Accordingly, it is ORDERED that the motion be decided on the papers submitted. See E.D.
Mich. LR 7.1(e)(2).
It is further ORDERED that the defendants’ motion for summary judgment [dkt. #9] is
GRANTED.
It is further ORDERED that the complaint is DISMISSED WITH PREJUDICE.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: January 11, 2018

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 11, 2018.
s/Susan Pinkowski
SUSAN PINKOWSKI

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