Kenney v. Aspen Technologies Inc
Filing
21
ORDER granting 17 defendant's Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KAREN M. KENNEY,
Plaintiff,
Case No. 17-CV-11282
vs.
HON. GEORGE CARAM STEEH
ASPEN TECHNOLOGIES, INC.,
Defendant.
_____________________________/
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [ECF DOC. 17]
Plaintiff Karen Kenney (“Kenney”) filed this action alleging that she
was wrongfully terminated by her employer, defendant Aspen
Technologies, Inc. (“Aspen”). In her two-count complaint, plaintiff alleges
retaliation under Title VII of the Civil Rights Act of 1964 (Count I) and the
Michigan Elliot Larsen Civil Rights Act (“ELCRA”) (Count II). The matter is
before the court on defendant’s motion for summary judgment. The court
heard oral argument on the motion on December 12, 2018. For the
reasons stated below, defendant’s motion for summary judgment is
GRANTED.
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FACTUAL BACKGROUND
Aspen is a company located in Brighton, Michigan, that manufactures
molded foam parts, primarily for the auto industry. Aspen’s principal owner,
Ken Beethem, holds 80% of the shares. Day-to-day operations are run by
General Manager Keith Quinn. April Jewell was Aspen’s HR Manager
during the relevant period.
Beethem, Quinn and plaintiff have a long history working together. In
the late 1990’s, the three worked for Eagle Industries. In 2003, after
leaving Eagle, they decided to form their own company. Beethem provided
the financing and took an 80% share of Aspen. Quinn received a 20%
share of Aspen, and then gave 1% from his share to plaintiff. Beethem was
CEO, Quinn oversaw day-to-day operations, and plaintiff was responsible
for the management of operations and supervision of the plant floor.
During her tenure at Aspen, from 2003 to 2008, plaintiff’s
management style was described by Quinn as “very harsh” with the
employees. (Quinn dep. 26) Beethem testified that plaintiff created turmoil
among the management group. (Beethem dep. 41-42) Quinn explained
that plaintiff was harsh with employees, especially the women, and that she
“create[ed] an atmosphere that people did not want to work in.” (Quinn
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dep. 46) Plaintiff resigned her position with Aspen in 2008 and moved to
Arizona.
In 2015, Aspen needed a Production Manager to help ramp up
production for new parts programs it had acquired. Beethem contacted
plaintiff to discuss having her rejoin Aspen.
Plaintiff was offered the job
because she knew Aspen’s operations and would get up to speed quickly.
(Quinn dep. 51-52) Plaintiff moved back to Michigan and started her job
with Aspen on May 1, 2015.
Upon plaintiff’s return, Beethem, Quinn and Jewell described
plaintiff’s management style as abrasive, and said that she was responsible
for many hourly workers leaving Aspen. (Beethem dep. 51; Quinn dep. 5259; Jewell dep. 69-71) While acknowledging that Aspen always had an
issue with hourly workers quitting, that number allegedly doubled after
plaintiff returned to Aspen. Jewell testified that 54 people quit in 90 days
while plaintiff was employed, and 30-40 of those employees said they
decided to quit because of plaintiff. (Jewell dep. 70-71) At this same time,
Aspen was trying to hire more workers to expand its workforce.
However, there are no written records to support Aspen’s contention
that many of the 54 workers who quit did so directly because of plaintiff’s
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management style. Aspen does name two employees who complained
about plaintiff in writing. A formal written complaint of harassment and
discrimination was made on June 15, 2015 on behalf of hourly employee
Jeerapan Fox. Fox’s husband outlined harassing behavior by plaintiff
against Jeerapan – such as warnings for having food and her phone out at
her station - as well as complaints about her production even though she
was pregnant. Quinn and Jewell met with plaintiff to discuss this complaint
and to counsel plaintiff on her behavior. (Quinn dep. 63-67; Jewell 61-67)
Quinn and Jewell believed that plaintiff listened to them. Id.
Another employee, Sara Clapman, wrote a letter to Aspen claiming
she was targeted by plaintiff: “At times I feel as though I am being harassed
by your new director of production; since Karen has been back things have
changed tremendously and not in a good way. It seems like everyone,
every day is on edge and I have heard nothing but complaints. . . . She
targets people she doesn’t like (especially women) which I find completely
unfair.”
Another incident involved plaintiff terminating Shannon Colgan, a
long-term employee, for violating a new rule regarding cell phones. Aspen
instituted a new policy of not allowing employees to have phones on the
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shop floor, with an exception for floor supervisors and team leaders
because they needed their phones to communicate with management.
Colgan was a floor supervisor. The new policy was announced to workers
in a shift meeting. The same day, plaintiff saw Colgan using her phone to
listen to music through headphones. Plaintiff contacted Beethem and
recommended that Colgan be terminated. Beethem concurred in the
decision. Quinn believed terminating Colgan was inappropriate and
intervened. Beethem agreed and Colgan was reinstated with a 5-day
suspension. Defendant believes that plaintiff did not present Beethem with
the full picture when she asked for permission to terminate Colgan.
Beethem testified that he was aware of the issues plaintiff was
causing in the plant, both from reports he received from Quinn and Jewell,
as well as complaints he received directly from employees. (Beethem dep.
50-51, 55) Beethem contends that he spoke to plaintiff seven or eight
times during the three months she was employed, but her performance did
not improve. (Beethem dep. 55) He then made the decision to terminate
plaintiff. On July 31, 2015 Beethem terminated plaintiff in his conference
room. Nobody else was present. Beethem did not take any notes, but
testified that he told plaintiff that “based on what we are doing . . . we are
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going in different directions” and “what she is doing is not working.”
(Beethem dep. 56) Jewell recommended that plaintiff be terminated and
Quinn agreed with the decision. (Jewell dep. 28-29, 78-79; Quinn dep. 5253) The termination letter given to plaintiff stated that the decision was
made collectively.
Plaintiff alleges that she was terminated in retaliation for protected
activity. The protected activity stems from conversations plaintiff had with
Jewell and Quinn in mid-May regarding where Aspen advertised for
employees. (Complaint, ¶¶ 12-17) Plaintiff contends that Jewell told her
that Aspen only advertised in Livingston and Oakland counties because
Beethem did not like the “demographics” of the people who resided in
Detroit or Flint. (Complaint, ¶ 13) Plaintiff testified that Jewell and Quinn
each told her that Beethem did not like black people. (Keeney dep. 57-58)
Plaintiff alleges she told both Jewell and Quinn that “[t]his was [an] illegal”
hiring practice. (Complaint, ¶ 15, 17) Plaintiff testified that she did not
speak directly to Beethem about this allegation. (Kenney dep. 62)
Jewell admitted that she and plaintiff had a conversation about
recruiting practices because plaintiff wanted to know what was being done
to get candidates in the door. Jewell explained that Aspen did not
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advertise in the newspaper, but only recruited on the Internet. (Jewell dep.
43-48) Jewell denies that there was any allegation of racial discrimination
or other discriminatory recruiting practices. (Jewell dep. 56-57) Quinn also
testified that plaintiff asked him about recruiting, but that she never raised
the issue of racial discrimination. (Quinn dep. 15)
Plaintiff testified that she based her claim of retaliatory discharge on
the fact that “[t]here would be no other reason. I have no documented
disciplinary action or other conversations or actions against me for the
short duration of my employment, so I am not sure what else I should
believe would be the reason for termination.” (Kenney dep. 83-84)
In her deposition, plaintiff said she and Quinn discussed an issue
regarding unemployment claims that were made against Aspen in the
interim period between plaintiff’s first and second periods of employment
with Aspen. During a slow period some employees claimed unemployment
when they were working less than full time. When work picked up, some of
those employees continued to collect unemployment benefits. Aspen
brought this to the attention of the unemployment agency and a number of
the employees were required to repay benefits wrongfully received.
Plaintiff alleges that Beethem “zeroed in on” three black employees, even
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though he did not target white employees who participated in the same
behavior. (Keeney dep. 66-68) Those employees who failed to make
repayment were charged with fraud by the unemployment agency. Three
employees pled guilty to felony fraud charges and were ordered to repay
the unemployment agency. These employees are still employed by Aspen.
Plaintiff referred to the claims in her deposition as evidence to support her
contention that Beethem was a racist. She did not include this incident in
her complaint. The record evidence regarding this incident does not raise a
genuine issue of material fact as to whether the employer acted out of
racial animus in this case.
In 2015, of the 163 hourly production workforce at Aspen, 28 or 17%
were African American. The population of Livingston County, where the
plant is located, is 0.4% African American.
After her termination, plaintiff filed a charge with the EEOC, obtained
a right-to-sue letter, and filed the instant lawsuit for retaliation in violation of
Title VII and ELCRA.
STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith if the pleadings, depositions, answers to
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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 Dept. 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
require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.'" Amway Distributors 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
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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
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).
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ANALYSIS
I.
Prima Facie Case of Retaliation
Title VII and ELCRA protect employees from retaliation for having
opposed an employer's unlawful actions. 42 U.S.C. § 2000e-3(a), Mich.
Comp. Laws § 37.2701(a).1 Plaintiff contends that she engaged in
protected activity when she complained to Jewell and Quinn about Aspen’s
race-based hiring practices and Beethem’s race-based discrimination, and
that defendant retaliated against her by terminating her employment.
To establish a prima facie case of retaliation, a plaintiff must
demonstrate that (1) she engaged in a protected activity; (2) her employer
knew of her exercise of her protected rights; (3) her employer took an
adverse employment action against her; and (4) there was a causal
connection between the protected activity and the adverse employment
action. Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 381 (6th
Cir. 2002); Allen v. Mich. Dep't of Corr., 165 F.3d 405, 413 (6th Cir.1999).
The same rubric applies to retaliation claims under both Title VII and
ELCRA. See Pena v. Ingham County Road Comm’n, 255 Mich. App. 299,
311, n.3 (2003).
1
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A.
Protected Activity
Plaintiff identifies two incidents as protected activity for purposes of
stating a prima facie case of retaliation. First, plaintiff contends that she
opposed discriminatory hiring practices by telling Jewell and Quinn that
what they were doing was illegal. An employee is protected against
employer retaliation for opposing any practice that the employee
reasonably believes to be a violation of Title VII, “whether or not the
challenged practice ultimately is found to be unlawful.” Johnson v.
University of Cincinnati, 215 F.3d 561, 579-80 (6th Cir. 2000).
Complaining to anyone about allegedly unlawful practices is
considered to be opposing conduct. Id. “[T]here is no qualification on who
the individual doing the complaining may be or on the party to whom the
complaint is made known . . . .” Id. at 580. “The only qualification that is
placed upon an employee's invocation of protection from retaliation under
Title VII's opposition clause is that the manner of his opposition must be
reasonable.” Id. While Jewell and Quinn deny plaintiff’s allegations of
racially discriminatory hiring practices, they acknowledge the conversations
about hiring practices in general took place.
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The second protected activity that plaintiff alleges she engaged in
was telling Quinn that it was unlawful that black employees who committed
fraud against the unemployment agency were prosecuted at Beethem’s
insistence, while white employees who engaged in the same practices
were not prosecuted.
Viewing the facts in the light most favorable to plaintiff shows she
reasonably believed that Aspen was discriminating against black applicants
and employees, and that she complained about it to defendant. Therefore
the first element of plaintiff’s prima facie case is satisfied.
B.
Defendant’s Knowledge
“[T]he decisionmaker's knowledge of the protected activity is an
essential element of a prima facie case of unlawful retaliation.” Frazier v.
USF Holland, Inc., 250 Fed.Appx. 142, 148 (6th Cir. 2007) (finding that
plaintiff failed to establish prima facie case where evidence did not reflect
that employer was aware of prior discrimination charge) (citing Mulhall v.
Ashcroft, 287 F.3d 543, 551 (6th Cir. 2002)). According to plaintiff, she
raised her complaints to Jewell and Quinn, but not directly to Beethem.
Defendant argues that Beethem was the one who made the decision
to terminate plaintiff’s employment and he had no knowledge of her
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protected activity. However, there is evidence that Jewell, Quinn and
Beethem collectively made the decision to terminate plaintiff. This is
supported by plaintiff’s termination letter, as well as Jewell’s letter to the
EEOC stating that the decision to terminate plaintiff was made by all three
of them. In addition, Quinn testified that Beethem would not have
terminated plaintiff if Quinn had not concurred in the decision, and Jewell
testified that she recommended to Beethem that plaintiff be terminated.
There is genuine dispute of material fact regarding who made the
decision to terminate plaintiff. Plaintiff has met the second element of her
prima facie case.
C.
Adverse Employment Action
It is undisputed that plaintiff was terminated which is an adverse
employment action.
D.
Causal Connection
To establish the element of causation, a plaintiff bears the minimal
burden of putting forth some evidence “sufficient to raise the inference that
her protected activity was the likely reason for the adverse action.”
E.E.O.C. v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997)
(citations omitted). Evidence that an adverse action was taken shortly after
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a plaintiff’s exercise of protected rights is relevant, but temporal proximity
alone will not support a finding that the protected activity and the adverse
action were connected. Nguyen v. City of Cleveland, 229 F.3d 559, 566
(6th Cir. 2000). Causation can also be shown where an employee is
subjected to higher disciplinary scrutiny than similarly situated employees,
Little v. BP Exploration & Oil Co., 265 F.3d 357, 364–65 (6th Cir. 2001), or
if the employee faced higher scrutiny than she faced before engaging in the
protected activity. Cantrell v. Nissan N. Am. Inc., 145 Fed. Appx. 99, 106
(6th Cir. 2005).
Plaintiff commenced her employment with Aspen on May 1, 2015. In
mid-May she allegedly complained about discriminatory hiring and
employment practices. She was terminated two and a half months later at
the end of July. Plaintiff argues that the reason given for her termination,
her management style, makes no sense when Quinn and Beethem
arguably hired her because of her management style. Plaintiff contends
she was subjected to heightened scrutiny for behaviors that defendant
knew to exist, which along with temporal proximity is sufficient to meet her
burden of showing a causal connection for stating a prima facie case. The
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court, however, is hard pressed to accept this argument without any
evidence of heightened scrutiny by defendant.
Defendant also points out that the large number of employees who
quit and the written complaints regarding plaintiff’s treatment of Jeerapan
Fox and Sarah Clapman occurred after plaintiff engaged in the allegedly
protected activity. It is the law in the Sixth Circuit that “an intervening
legitimate reason” to take an adverse employment action “dispels an
inference of retaliation based on temporal proximity.” Kuhn v. Washtenaw
Cty., 709 F.3d 612, 628 (6th Cir. 2013) (extended discretionary leave that
caused a shortage of deputies in the Sheriff’s Office constituted an
intervening reason for the County to terminate plaintiff’s employment); see
also Wasek v. Arrow Energy Services, Inc., 682 F.3d 463, 472 (6th Cir.
2012) (oil rig worker who had complained about sexual harassment to his
superiors, but who subsequently left his worksite without authorization, had
engaged in an intervening event that gave his employer a legitimate reason
to discipline him). Where the documented employee complaints about
plaintiff, as well as the unusually large number of employees who quit,
occurred or continued after plaintiff engaged in the protected activity, there
is an intervening event that replaces an inference of temporal proximity.
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Viewing the facts in the light most favorable to plaintiff, she has failed
to provide any evidence aside from temporal proximity alone that links her
protected activity to her termination. Furthermore, there is evidence of
intervening legitimate reasons for defendant to take an adverse
employment action which “dispels an inference of retaliation based on
temporal proximity” in this case. See id.
To establish a prima facie case, a plaintiff must present some
evidence to support an inference that the adverse employment action was
taken in retaliation for the protected activity. See Nguyen, 229 F.3d at 567.
Plaintiff fails to present evidence to support a causal connection between
her protected activity and the adverse employment action. Having failed to
set forth a prima facie case of retaliation under Title VII, the court is
constrained to grant defendant’s motion for summary judgment.
CONCLUSION
For the reasons stated above, defendants’ motion for summary
judgment is GRANTED.
Dated: December 19, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
December 19, 2018, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
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