Robinson v. MGM Grand Det L L C
Filing
51
ORDER granting 43 defendant's Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PRINCE ROBINSON,
Plaintiff,
Case No. 17-CV-13128
HON. GEORGE CARAM STEEH
vs.
MGM GRAND DETROIT, LLC,
Defendant.
__________________________/
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (Doc. 43)
Plaintiff Prince Robinson worked as a valet attendant for Defendant
MGM Grand Detroit, LLC (“MGM”) for fourteen years prior to his
termination on November 15, 2016. In his fourteen-count Complaint,
Robinson alleges he was terminated in retaliation for taking medical leave
for treatment of his plantar fasciitis, in violation of the Family and Medical
Leave Act (“FMLA”). He also alleges retaliation, hostile work environment,
race discrimination, and sexual harassment in violation of Title VII and
Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), disability discrimination
and retaliation in violation of the American’s with Disabilities Act (“ADA”),
and Michigan’s Persons with Disability Act (“PWDCRA”), and negligent
retention, training, and supervision, and negligent infliction of emotion
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distress under state common law. Now before the court is Defendant’s
motion for summary judgment as to all claims. For the reasons set forth
below, Defendant’s motion for summary judgment shall be granted.
I. Factual Background
A.
Plaintiff’s Employment
The court construes the facts in the light most favorable to the
nonmoving party, here Robinson. Robinson began working for MGM as a
valet attendant on June 27, 2002. (Doc. 46, Ex. A). His job responsibilities
included retrieving cars from an underground parking structure, which
frequently involved running on hard pavement. (Doc. 46, Ex. B, C at 42).
According to Robinson’s supervisor, Lisa Conner, he was frequently
arriving late for work or barely on time, and had been disciplined for an
instance where he was rushing to clock in on time and knocked over and
injured a co-worker. (Doc. 43, Ex. D at ¶¶ 11-12, Ex. A at 289-90).
B.
Plaintiff’s Plantar Fasciitis
Robinson sought medical treatment for foot pain around 2003, and
was diagnosed with plantar fasciitis. (Doc. 46, Ex. C at 142-43). He was
first treated with cortisone shots, and later was fitted with orthotics for his
shoes. Id. at 143. At his deposition, Robinson testified that he was able to
work with his orthotics. (Doc. 43, Ex. A at 209-10). Despite the orthotics,
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he continued to suffer foot pain which worsened over time. (Doc. 46, Ex. C
at 159). In March, 2016, Robinson applied to take intermittent leave under
the FMLA, but his request was denied when he failed to submit certification
from his physician. (Doc. 43, Ex. G at PgID 934). In September, 2016, the
pain became so debilitating that he was unable to work until new orthotics
could be made. (Doc. 46, Ex. C at 163). He submitted another request for
FMLA leave until new orthotics could be fashioned. (Doc. 43, Ex. A at 184,
225).
Robinson was treated by a podiatrist, Charles Young, who wrote a
disability certificate that Robinson was under his care from October 10,
2016 to October 25, 2016, during which time, Robinson was reported to be
totally incapacitated due to his plantar fasciitis. (Doc. 46, Ex. J).
Robinson was approved for FMLA leave as of September 14, 2016.
(Doc. 46, Ex. C at 161-62). Robinson claims his supervisor, whom he
identities only by his first name, Enrique, told him “congratulations on your
FMLA approval.” (Doc. 46, Ex. C at 221). During his sick time and
vacation time in September, 2016, Robinson tried to secure a business
loan in Atlanta. (Doc. 43, Ex. J). MGM argues that Robinson used false
identification and falsified corporate documents in his attempt to secure the
loan, which it maintains would have been grounds to terminate him, had it
known of this activity. (Doc. 43, Ex. J, K at ¶¶ 4-5).
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C.
Robinson Fails to Use Time Clock and Improperly Uses
Exception Log to Record Hours Worked
On September 28, 2016, Robinson arrived late for his shift and
received .5 disciplinary attendance points. (Doc. 43, Ex. L). On September
30, 2016, Robinson arrived late for work again. Rather than clock in late,
he signed the “exception log” noting that he worked from 6 p.m. to 2 a.m.
(Doc. 43, Ex. M, Ex. A at 117, 121). In fact, Robinson arrived at the casino
employee entrance at 6:02 p.m., changed into his uniform until 6:06 p.m.,
used a hotel elevator to the hotel lobby, and arrived at the casino valet
office at 6:10 p.m. (Doc. 43, Ex. M at PgID 1016-17). According to MGM,
the exception log is only to be used when there is a technical problem with
the time clock that prevents an employee from clocking in. No supervisor
signed the exception log for Robinson as required under MGM policy.
(Doc. 43, Ex. D at ¶18). Thus, on October 1, 2016, MGM relied on
surveillance video to verify Robinson’s time recording in the exception log,
and determined that Robinson arrived late and did not report to the casino
valet office until 6:10 p.m. (Doc. 43, Ex. M at PgID 1016-17).
D.
Robinson’s Termination for Falsification of Time Records
On October 29, 2016, when Robinson attempted to return to work,
MGM served him a notice of Suspension Pending Investigation (”SPI”) for
his falsification of time records on September 30, 2016. (Doc. 43, Ex. 0).
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Robinson’s due process meeting was held on November 8, 2016 with his
union representative present. (Doc. 43, Ex. M at PgID 1016). Robinson
admitted he was late, and that he used the exception log to avoid being
docked in pay or receiving disciplinary points for tardiness. (Doc. 43, Ex. A
at 276-78). The due process hearing was conducted by Labor Relations
Partner Wanda Parker, who recommended that Robinson be terminated.
(Doc. 46, Ex. M at PgID 1016-17). Parker reported the results of the time
clock fraud investigation to her supervisor, Tara McIntosh, Senior
Employee and Labor Relations Partner, and Marc Guastella, then Vice
President in charge of the valet department. McIntosh and Guastella
decided to fire Robinson. (Doc. 43, Ex. D at ¶ 26; Ex. P). MGM notified
Robinson that he was terminated effective November 15, 2016. (Doc. 43,
Ex. P, Doc. 46, Ex. C at 123). MGM has terminated other employees for
similar misconduct. (Doc. 43, Ex. D at ¶ 21, Ex. N at 4).
E.
Robinson’s Letter to Human Resources
After his use of the exception log on September 30, 2016, Robinson
was out of work, either on vacation time or FMLA leave, until he returned to
work in the evening of Friday, October 28, 2016. (Doc. 46, Ex. C at 184,
Doc. 43, Ex. L, Ex. O). He was terminated at the end of his shift in the
early morning hours of Saturday, October 29, 2016. (Doc. 46, Ex. C at
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186). While off work, Robinson heard a rumor he was going to be
terminated. (Doc. 46, Ex. C. at 183). He then drafted a five-page letter
complaining about his supervisor, Lisa Conner, for gripes dating back to
2007, which he dropped off in a mailbox outside the Human Resources
office on his first day back to work. (Doc. 46, Ex. C at 185, 189, Doc. 43,
Ex. Q). Robinson claims he was terminated in retaliation for the
submission of that letter. In that letter, Robinson accused Conner of having
“the biggest, nastiest, uncontrollable mouth this side of the Player’s Club,”
and complained that she is “bald-headed, divorced and can’t have any
kids.” Id. at PgID 1038-39. Robinson claimed that Conner created a
hostile environment. Specifically, he claimed that Conner told a pregnant
female valet, “I bet you’re going to be glad when you drop that bitch.” Id. at
PgID 1038. He also complained that he heard a rumor that Conner
removed her panties in her car with the door opened and said, “I got to let
this m— f —- breathe.” Id. at PgID 1039.
Robinson also alleged that in 2015, Conner told him to go “get some
sun,” allegedly a reference to his light complexion. Id. At his deposition,
Robinson testified that he and Conner are both African-American and share
the same light complexion. (Doc. 43, Ex. A at 195). He also alleged that
Conner’s agenda is to fire anyone with FMLA approval. (Doc. 43, Ex. Q at
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PgID 1040). He claimed that Conner must have breached the privacy of
his medical information, because his supervisor Enrique congratulated him
on receiving FMLA leave. Id. He also alleged that Conner made a
reference to his penis, by commenting, “it smells like you washed it.” Id. at
PgID 1041. He further claimed that Conner’s negative remarks against him
date back to 2007 when she allegedly called him “pathetic” and told him
that, “I feel sorry for your wife.” Id. Robinson also claims that Conner
referred to another man as a “real man,” which he claims implied he was
not. Id. at PgID 1039. Finally, he complains that he is being targeted
“because of many reasons,” including his status “as a veteran at the
highest of a two tier pay plan.” Id. at PgID 1041. These allegations set forth
in Robinson’s October 28, 2016 letter to Human Resources form the factual
predicate for his discrimination and retaliation claims in this lawsuit.
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
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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
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. Tolan v. Cotton, 572 U.S. 650, 660 (2014); Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
"[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).
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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).
III. Analysis
A.
FMLA Retaliation (Count I)
Robinson claims he was terminated in retaliation for taking FMLA
leave. (Count I). Where, as here, Robinson sets forth an FMLA retaliation
claim based on circumstantial evidence, it is evaluated under the familiar
McDonnell Douglas burden-shifting framework. Donald v. Sybra, Inc., 667
F.3d 757, 762 (6th Cir. 2012). To establish a prima facie case of retaliation
under the FMLA, Robinson must show that: (1) he was engaged in a
statutorily protected activity; (2) MGM knew that he was exercising his
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FMLA rights; (3) he suffered an adverse employment action; and (4) a
causal connection existed between the protected FMLA activity and the
adverse employment action. Id. at 761. “The burden of proof at the prima
facie stage is minimal; all the plaintiff must do is put forth some credible
evidence that enables the court to deduce that there is a causal connection
between the retaliatory action and the protected activity.” Dixon v.
Gonzales, 481 F.3d 324, 333 (6th Cir. 2007).
Robinson alleges that his protected activity was the taking of FMLA
leave. (Doc. 1 at PgID 9-10, Doc. 46 at PgID 1104). There is no dispute
that Robinson took intermittent FMLA leave, that this was known to MGM,
and that he was terminated. Thus, only the fourth causation prong of the
prima facie case is in dispute. The Sixth Circuit has found that temporal
proximity between the protected activity and the adverse employment
action may be sufficient to establish a prima facie case of retaliation.
Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 283–84 (6th Cir.
2012) (collecting cases). Here, Robinson attempted to return to work from
FMLA leave on Friday, October 28, 2016. During the early morning hours
of his shift the next day, Robinson was suspended, served with a notice of
Suspension Pending Investigation, and after a due process hearing, was
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formally terminated two weeks later. Given this close proximity in time,
Robinson has satisfied his prima facie case.
The next step of the McDonnell Douglas analysis requires the
employer to offer a legitimate, nondiscriminatory reason for discharging
Robinson. Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007).
“Fraud and dishonesty constitute lawful, non-retaliatory bases for
termination.” Seeger, 681 F.3d at 283–84. Here, MGM asserts that it had
a legitimate, nondiscriminatory reason for terminating Robinson because
he failed to use the time clock as required, and falsified his time records by
using the exception log, noting he had reported to work at 6 p.m., when in
fact, he did not begin working until 6:10 p.m. Robinson intentionally used
the exception log to avoid detection of his lateness. MGM also references
Robinson’s history of repeated tardiness in light of the false time entry as
the reason for his termination.
MGM also argues it could have legitimately discharged Robinson for
his alleged fraudulent activities when he sought to secure a business loan
in September, 2016. But after-acquired evidence of wrongdoing by an
employee is not per se a bar to all relief, but generally is only relevant to
the question of damages. Serrano v. Cintas Corp., 699 F.3d 884, 903 (6th
Cir. 2012) (citing McKennon v. Nashville Banner Publ’g, 513 U.S. 352, 358
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(1995)). Accordingly, the court does not consider MGM’s after-acquired
evidence argument in the liability phase.
Even without considering Robinson’s fraudulent business activities,
which he has not disputed, MGM has set forth a legitimate reason for his
termination – his fabrication of fraudulent time records. Having set forth a
legitimate reason for Robinson’s termination, the burden shifts back to
Robinson to show that the stated reason is pretextual. Id. at 285. Unlike
the minimal burden necessary to establish the prima facie case, the Sixth
Circuit “is clear that temporal proximity cannot be the sole basis for finding
pretext.” Donald, 667 F.3d at 763 (citing Skrjanc v. Great Lakes Power
Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001)). “However, ‘suspicious timing
is a strong indicator of pretext when accompanied by some other,
independent evidence.’” Seeger, 681 F.3d at 285 (quoting Bell v. Preffix,
Inc., 321 F. App’x 423, 431 (6th Cir. 2009)).
Thus, the court must consider the other evidence Robinson relies
upon. In order to prove causation, Robinson alleges that his supervisor’s
comment, “Congratulations on your FMLA leave” is evidence of bias. But
nothing about that comment suggests his supervisor begrudged him for
taking leave. In fact, the opposite conclusion may be reached as his
supervisor appears to acknowledge the benefit to Robinson that his request
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for leave is approved. Robinson also relies on his deposition testimony that
it was “well known” that his employer had a bias against employees using
FMLA because of the staffing difficulties that it posed. But rumor and
hearsay are not a sufficient basis for opposing summary judgment. The
Sixth Circuit has held that “the party opposing summary judgment must
show that []he can make good on the promise of the pleadings by laying
out enough evidence that will be admissible at trial to demonstrate that a
genuine issue on a material fact exists, and that a trial is necessary. Such
evidence submitted in opposition to a motion for summary judgment must
be admissible.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir.
2009) (internal quotation marks and citation omitted). Thus, hearsay
evidence must be disregarded. Id.
Finally, Robinson relies on a photocopy of a meme posted on
Instagram showing the rapper Snoop Dogg with the caption, “How
supervisors look when you have FMLA.” (Doc. 46, Ex. F). There is no
evidence in the record as to when the meme was posted, who posted it, or
how it is linked to MGM. An individual commented on the meme, “you ain’t
lying dawg!!” and Plaintiff contends the comment was made by an MGM
employee. Even assuming the photocopy would be admissible at trial, this
isolated document is insufficient to overcome MGM’s proofs that Plaintiff
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was terminated for falsifying time records, that other employees were
terminated for similar misconduct, and that other employees took FMLA
leave without negative consequences.
MGM’s stated reason for terminating Robinson was for submitting
fraudulent time records. MGM’s employment policies specifically state that
just cause for immediate termination exists when an employee “mak[es]
false statements on, submit[s] fraudulent or altered documents in
connection with . . the Time and Attendance Record.” (Doc. 43, Ex. C at
PgID 907). MGM has submitted the affidavit of Conner and deposition
testimony of Parker that other employees, including supervisors, were
terminated for similar misconduct. (Doc. 43, Ex. D at ¶ 21, Ex. N at 4).
Robinson has not disputed this evidence. Accordingly, Robinson’s proofs
are insufficient to raise a genuine issue of material fact that he was
terminated in retaliation for using FMLA leave and Count I shall be
dismissed.
B.
Disability Discrimination (Counts IV, VIII)
Robinson alleges disability discrimination in violation of the ADA and
PWDCRA (Counts IV, VIII). The ADA and PWDCRA “substantially mirror”
each other. Donald, 667 F.3d at 764. Therefore, “claims under both
statutes are generally analyzed identically.” Cummings v. Dean Transp.,
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Inc., 9 F. Supp. 3d 795, 804–05 (E.D. Mich. 2014) (citing Steward v. New
Chrysler, 415 F. App’x 632, 641 (6th Cir. 2011)).
To make out a prima facie case of employment discrimination through
indirect evidence under the ADA, a plaintiff must show that 1) he is
disabled; 2) otherwise qualified for the position, with or without reasonable
accommodation; 3) suffered an adverse employment decision; 4) the
employer knew or had reason to know of the plaintiff's disability; and 5) the
position remained open while the employer sought other applicants or the
disabled individual was replaced.” Whitfield v. Tennessee, 639 F.3d 253,
258–59 (6th Cir. 2011) (citations omitted). Under the McDonnel Douglas
burden-shifting framework, once the plaintiff establishes his prima facie
case, the burden shifts to the employer to show a nondiscriminatory reason
for the adverse employment decision. If the employer does so, the burden
shifts to the plaintiff to show the reason given is pretextual. Id. at 259. The
plaintiff’s disability must be a “but-for” cause of his termination to prove
discrimination under the ADA. Lewis v. Humboldt Acquisition Corp., 681
F.3d 312, 321 (6th Cir. 2012) (giving the history of why the court applies the
“but-for” causation test instead of the “motivating factor test” to the ADA).
MGM argues that plantar fasciitis does not qualify as a disability
under the ADA or PWDCRA, that the decision makers who decided to
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terminate him did not know of his plantar fasciitis, that Robinson was able
to perform his job duties with the use of orthotics, and many other
employees had the same condition and remained employed. This court
need not decide whether Robinson’s plantar fasciitis constitutes a disability
under the ADA or PWDCRA, as Robinson has failed to show that MGM
discharged him because of his disability. Robinson testified that he
complained of foot pain to his supervisors at MGM prior to Conner
becoming his supervisor in 2005. (Doc. 46, Ex. C at 144-48). Yet,
Robinson does not allege any discrimination on the basis of his plantar
fasciitis other than his termination over ten years later in November, 2016.
Given the absence of any evidence that he was terminated because of his
alleged disability, MGM is entitled to summary judgment on Robinson’s
disability discrimination claims pled in Counts IV and Count VIII.
C.
Retaliation in Violation of the ADA and PWDCRA (Counts XI and
XII)
Robinson also alleges that his termination was in retaliation for his
protected activity in violation of the ADA and PWDCRA. (Counts XI and
XII). It is not clear what he considered his “protected activity” under those
statutes. Perhaps he means the drafting of his October 28, 2016 letter, but
nowhere in that letter does Robinson allege that he was discriminated
against because of his plantar fasciitis.
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The ADA prohibits employers from “discriminat[ing] against any
individual because such individual has opposed any act or practice made
unlawful by this chapter.” 42 U.S.C. § 12203(a). “Discrimination here
means retaliation – that ‘but for’ an employee’s statutorily protected activity
the employer would not have taken the ‘adverse employment action.’”
E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015) (internal
quotation marks and citations omitted). Courts use the McDonnell-Douglas
burden-shifting framework to assess retaliation claims. Id. The plaintiff
bears the initial burden to establish a prima facie case of retaliation, which
requires a showing that (1) the plaintiff engaged in activity protected under
the ADA; (2) the employer knew of that activity; (3) the employer took an
adverse action against plaintiff; and (4) there was a causal connection
between the protected activity and the adverse action. Rorrer v. City of
Stow, 743 F.3d 1025, 1046 (6th Cir. 2014). “If a plaintiff does so, the
defendant has a burden of production to articulate a nondiscriminatory
reason for its action.” Ford Motor Co., 782 F.3d at 767 (emphasis in
original). “If the defendant meets its burden, the plaintiff must prove the
given reason is pretext for retaliation.” Id. “To demonstrate pretext, a
plaintiff must show both that the employer’s proffered reason was not the
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real reason for its action, and that the employer’s real reason was
unlawful.” Id. (emphasis in original).
“A letter to an employer constitutes protected activity if it opposes
unlawful activity with some specificity, as opposed to merely a ‘vague
charge of discrimination.’” Sharp v. Waste Mgmt., Inc., 47 F. Supp. 3d 584,
601 (S.D. Ohio 2014), aff'd sub nom. Sharp v. Profitt, 674 F. App'x 440 (6th
Cir. 2016) (citing Stevens v. Saint Elizabeth Med. Ctr., Inc., 533 F. App’x.
624, 631 (6th Cir. 2013)). Here, the October 28, 2016 letter does not
constitute protected activity within the context of the ADA and PWDCRA.
In that letter, Robinson complains about Conner, her alleged hostility
towards employees who seek to use FMLA leave, and the fact that he is in
“constant pain” after 15 years of running on concrete. (Doc. 43, Ex. Q).
But Robinson never mentions his plantar fasciitis by name, nor does he
allege any discrimination based on his disability, only that he felt his job
was threatened because he took FMLA leave. Retaliation for taking FMLA
leave is governed by the FMLA, and is not covered under the ADA or
PWDCRA. Having failed to complain of any disability discrimination in his
October 28, 2016 letter, MGM is entitled to summary judgment on
Robinson’s ADA or PWDCRA retaliation claims. (Count XI, XII). Also,
even if the October 28, 2016 letter could be construed as protected activity
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under the ADA and PWDCRA, Robinson has failed to raise a genuine issue
of material fact that he was terminated for drafting that letter. For this
additional reason, MGM is also entitled to summary judgment as to Counts
XI and XII.
D.
Title VII and ELCRA Retaliation (Counts II and V)
Next, the court considers Robinson’s claim that his termination was
retaliation for his sending the October 28, 2016 letter to Human Resources
in violation of Title VII and ELCRA. (Counts II and V). At the summaryjudgment stage, a plaintiff must adduce either direct or circumstantial
evidence to prevail on a retaliation claim. Rogers v. Henry Ford Health
Sys., 897 F.3d 763, 771–72 (6th Cir. 2018) (citing Jackson, 191 F.3d at
658). Once again, because Robinson offers only circumstantial evidence
of retaliation, the McDonnell Douglas burden-shifting framework applies.
Id. at 771.
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
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
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adverse employment action. Taylor v. Geithner, 703 F.3d 328, 336 (6th
Cir. 2013).
Once again, Robinson fails to satisfy the fourth prong. He has come
forward with no circumstantial evidence to suggest that his complaints of
race discrimination and a hostile work environment were the reason for his
termination. He relies on the proximity in time between the submission of
his letter and his termination, but as discussed above, temporal proximity
standing alone is insufficient to show pretext. And temporal proximity is all
Robinson relies upon. Also, Robinson had heard a rumor he was about to
be fired, which was the reason he wrote the letter in the first place. (Doc.
43, Ex. Q at PgID 1038). As MGM aptly points out in its brief, “an employer
need not refrain from carrying out a previously reached employment
decision because an employee subsequently claims to be engaging in
protected activity.” Curay-Cramer v. Ursuline Acad. of Wilmington,
Delaware, Inc., 450 F.3d 130, 137 (3rd Cir. 2006) (citing Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 272 (2001)).
Even if MGM decided to terminate Robinson after receipt of the letter,
no evidence, circumstantial or otherwise, suggests MGM terminated him
because he wrote the letter. Accordingly, MGM is entitled to summary
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judgment on Robinson’s claims of retaliation in violation of Title VII and
ELCRA. (Counts II and V).
E.
Race and Sexual Harassment Claims under Title VII and ELCRA
(Counts III, VI, VII, IX, X)
1.
Circumstantial Evidence of Hostile Work Environment
Next, the court considers Robinson’s claim of race or sex harassment
in violation of Title VII and ELCRA. (Counts III, VI, VII, IX, X). The same
principles that govern sexual harassment also govern claims of race
discrimination. Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir.
1999). Race discrimination claims brought under ELCRA and Title VII are
analyzed under the same evidentiary framework. Humenny v. Genex
Corp., 390 F.3d 901, 906 (6th Cir. 2004); Ondricko v. MGM Grand Detroit,
LLC., 689 F.3d 642, 652-53 (6th Cir. 2012). Once again, Robinson relies
on circumstantial evidence; thus, the court employs the familiar McDonnell
Douglas burden-shifting framework approach.
To establish a prima facie case of a race or sex harassment under
Title VII or ELCRA, a plaintiff must demonstrate that (1) he was a member
of a protected class; (2) he was subjected to unwelcome racial or sexual
harassment; (3) the harassment was based on race or sex; (4) the
harassment unreasonably interfered with his work performance by creating
an intimidating, hostile, or offensive work environment; and (5) the
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employer knew or should have known about the harassing conduct but
failed to take corrective action or there is a basis for employer liability.
Kuhn v. Washtenaw Cty., 709 F.3d 612, 627 (6th Cir. 2013); Fullen v. City
of Columbus, 514 F. App’x 601, 606-07 (6th Cir. 2013) (Title VII); Sheridan
v. Forest Hills Pub. Sch., 247 Mich. App. 611, 620-21 (2001) (ELCRA).
Robinson’s claim fails at the fourth element. To satisfy the fourth
element of the prima facie case, Robinson must show that the harassment
was “severe or pervasive enough to create an objectively hostile or abuse
work environment—an environment that a reasonable person would find
hostile or abusive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
The environment must also have been hostile or abusive from the
subjective perspective of the plaintiff. Id. In making this assessment, the
court examines the totality of the circumstances, considering “the frequency
of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance.” Id. at 23.
To be considered harassment, the conduct complained of must be “so
‘severe or pervasive’ as to ‘alter the conditions of [plaintiff’s] employment
and create an abusive working environment.’” Faragher v. City of Boca
Raton, 524 U.S. 775, 786 (1998) (citation omitted). For the reasons
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discussed below, Robinson’s proofs are insufficient to create a genuine
issue of material fact that the conduct alleged was so severe and pervasive
as to create an abusive working environment.
Here, Robinson relies on the following proofs. In 2015, his
supervisor, Conner, told him that he needed “some sun.” (Doc. 46, Ex. C
at 195). He claims this is evidence of racial discrimination. But the record
demonstrates that Conner, like Robinson, was an African American with
the same light complexion as him. Id. Thus, this one isolated remark by
another African American does not create a racially hostile work
environment. Isolated remarks are insufficient to constitute pervasive or
severe harassment. See Williams v. CSX Transp. Co., 643 F.3d 502, 513
(6th Cir. 2011) (holding that “despicable” “racist” statements were not
sufficiently “severe” or “pervasive” because they were “isolated” and were
not physically threatening or humiliating).
Robinson also alleges that in 2013, Conner introduced another man
to him as a “real man,” which he felt was derogatory to his own masculinity.
(Doc. 46, Ex. C at 196). In October, 2015, Conner touched his beard
without his permission, id. at 227, and in that same month, Conner told him,
“it smelled like he washed it,” which he claims was in reference to his penis.
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Id. at 227-28. He also relies on a rumor he heard that Conner removed her
underwear in front of other valet attendants. Id. at 192-93.
The Sixth Circuit has found that an employee’s workplace did not
constitute a hostile environment where the misconduct alleged was much
more pervasive and extreme than here. In Burnett v. Tyco Corp., 203 F.3d
980, 981, 985 (6th Cir. 2000), for example, the court found that a hostile
environment did not exist even where a supervisor placed a pack of
cigarettes inside plaintiff’s tank top and bra strap, and made sexual
remarks two weeks, and again, some six months later. Also, in Clay v.
United Parcel Serv., Inc., 501 F.3d 695, 700-02, 707-08 (6th Cir. 2007), the
court affirmed the dismissal of plaintiff’s racially hostile work environment
claim where the plaintiff relied on fifteen specific instances over a two-year
time period, including false accusations of workplace misconduct, repeated
criticism of activities for which white employees were treated more
favorably, and forcing plaintiff to perform additional job duties. The Sixth
Circuit held that this pattern of harassing conduct was insufficiently serious
or pervasive to create an objectively hostile work environment. Id. at 708.
So too here. Robinson relies solely on a handful of isolated remarks
and conduct by his valet supervisor, Conner, all of which occurred well over
a year prior to his dismissal. As discussed previously, rumor and hearsay
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cannot be the basis for overcoming a motion for summary judgment.
Alexander, 576 F.3d at 558. Considering all of Conner’s alleged
statements and the allegation that she touched Robinson’s beard once,
Robinson has failed to show that Conner’s conduct was so severe and
pervasive that it altered his ability to perform his work as a valet attendant.
Accordingly, MGM is entitled to summary judgment on all of Robinson’s
claims of race and sex harassment and hostile work environment.
2.
Robinson’s Failure to Report Alleged Harassment
In addition to Robinson’s failure to show severe and pervasive
harassment, MGM also has established an affirmative defense to liability.
The Sixth Circuit has held that there can be no hostile work environment
where the employer demonstrates (a) that it exercised reasonable care to
prevent and correct promptly any sexually or racially harassing behavior;
and (b) that plaintiff unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid
harm otherwise. Thornton v. Fed. Express Corp., 530 F.3d 451, 456 (6th
Cir. 2008) (citing Faragher, 524 U.S. at 807). MGM meets both
requirements.
Here, MGM has an anti-discrimination, harassment, and retaliation
policy set forth in its employee handbook. (Doc. 43, Ex. B). The employee
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handbook sets forth a procedure for employees to report any alleged
discrimination or harassment to certain persons in the Human Resources
Department or to any member of management, and establishes a protocol
for the investigation of such complaints. Id. at PgID 902. Parker testified
that a list of contact persons for employees was posted on the premises, as
well as a tollfree hotline for reporting concerns. (Doc. 46, Ex. E at 36).
Robinson was aware of the hotline as he used it to complain about his
suspension and Conner on November 1, 2016. (Doc. 43, Ex. T). Robinson
admits he never complained of Conner’s alleged harassment until years
after it took place when he heard a rumor he was to be terminated when he
returned from FMLA leave.
The Sixth Circuit has held that a two-month delay in reporting
harassment to take advantage of an employer’s corrective opportunities is
unreasonable. E.E.O.C. v. AutoZone, Inc., 692 F. App'x 280, 286 (6th Cir.
2017) (citing Thornton, 530 F.3d at 457–58). Here, Robinson has not
shown that waiting at least one year, and in some instances three years, to
report alleged harassment is reasonable. For this additional reason, MGM
is also entitled to summary judgment of Robinson’s race and sex
harassment and hostile work environment claims.
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F.
Common Law Claims (Counts XIII, XIV)
Finally, the court considers Robinson’s state common law claims.
Count XIII alleges negligent retention, training, and supervision. And Count
XIV alleges negligent infliction of emotional distress. In its motion for
summary judgment, MGM argued it is entitled to summary judgment as to
Count XIII because “Michigan has never recognized a claim for negligent
hiring by holding an employer liable for an employee’s acts resulting in
economic injury or for any kind” absent a foreseeable act of physical
violence. Travis v. ADT Sec. Servs., Inc., 884 F. Supp. 2d 629, 637-38
(E.D. Mich. 2012) (quoting Vennittilli v. Primerica, Inc., 943 F. Supp. 793,
797 (E.D. Mich. 1996)). In his response brief, Robinson has not addressed
MGM’s argument in favor of dismissal of Count XIII. Accordingly, Robinson
is deemed to have waived the claim, and summary judgment shall enter for
MGM on the negligent retention, training, and supervision claim. See
Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013).
The court turns lastly to Robinson’s claim for negligent infliction of
emotional distress. The Michigan Court of Appeals has recognized that it
has never “appl[ied] the tort of negligent infliction of emotional distress
beyond the situation where a plaintiff witnesses negligent injury to a third
person and suffers mental disturbance as a result.” Hayes v. Langford, No.
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280049, 2008 WL 5158896, at *4 (Mich. Ct. App. Dec. 9, 2008) (quoting
Duran v. Detroit News, Inc., 200 Mich. App. 622, 629 (1993)). The tort of
negligent infliction of emotional distress has been uniquely limited to
“bystander recovery” actions. Id. (citing Nugent v. Bauermeister, 195
Mich.App. 158, 159 (1992)). Robinson’s negligence claim based on his
own alleged emotional and mental injuries simply does not fall within the
category of “bystander recovery” actions. Accordingly, MGM’s motion for
summary judgment as Robinson’s negligent infliction of emotional distress
claim shall be granted.
IV. Conclusion
For the reasons set forth above, MGM’s motion for summary
judgment (Doc. 43) is GRANTED.
IT IS SO ORDERED.
Dated: June 12, 2019
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
June 12, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
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