Bivens v. Zep, Inc

Filing 26

ORDER Granting Defendant's 21 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HRya)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOROTHY BIVENS,
Plaintiff,

Case No. 23-cv-11398
Hon. Matthew F. Leitman

v.
ZEP, INC.,
Defendant.
__________________________________________________________________/
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (ECF No. 21)
In this action, Plaintiff Dorothy Bivens brings retaliation, race discrimination,
and sexual harassment claims under both state and federal law against her former
employer, Zep, Inc. (See Compl., ECF No. 1.) Zep has now moved for summary
judgment on all of Bivens’ claims. (See Mot., ECF No. 21.) According to Zep,
Bivens’ position was eliminated due to a company-wide reduction in force, and it
insists that it did not harass, retaliate, or discriminate against her in any way.
The Court has carefully reviewed Zep’s motion, and for the reasons explained
below, the motion is GRANTED.1

1

The Court concludes that it may resolve this motion without oral argument. See
E.D. Mich. Local Rule 7.1(f)(2).
1

I
The parties have set forth a lengthy factual recitation in their summary
judgment briefing. Only a small part of that background is relevant to the issues the
Court deems dispositive. The Court focuses on that portion of the background
below.
A
Zep “is a manufacturer and distributor of cleaning products and solutions for
retail and commercial use.” (Decl. of Joshua Rain, Zep Director of Sales,
Distribution, at ¶ 2, ECF No. 21-2, PageID.154.) On May 3, 2024, Bivens, an
African American woman, began working for Zep as a Territory Sales
Representative (a “TSR”). (See id. at ¶¶ 3-4, PageID.154-155.) “A TSR is an outside
sales position and travels from client-to-client (business-to-business) selling
products and maintaining relationships with Zep’s customers.” (Id. at ¶ 3,
PageID.154.) Bivens was hired to be a TSR in the “greater Detroit Metropolitan
area,” which was “generally within driving distance of her home in the Detroit,
Michigan area.” (Id. at ¶ 4, PageID.155.)
B
On August 25, 2021, a customer “asked [Bivens] to come meet [him] because
he wanted to go over some products that he needed.” (Bivens Dep. at 26:15-21, ECF
No. 24-2, PageID.301.) Bivens then went to that customer’s office. (See id.) After

2

she arrived and a receptionist brought her into the customer’s office, the customer
closed and locked the door. (See id. at 26:21-27:6.) Bivens testified that after the
customer locked the door, the customer “star[red] at [her]” in a way that made her
uncomfortable and “asked [her] if [they] could date.” (Id. at 27:10-14.) After Bivens
said no, Bivens “moved the conversation back to business.” (Id. at 27:16-17.) Then,
before the customer allowed Bivens to leave the room, he “asked [her out] again.”
(Id. at 27:19-20.)
After Bivens returned to her car, she texted her direct supervisor, Joshua Rain.
Bivens told Rain that she “just had the weirdest and most uncomfortable customer
visit ever.” (Text Messages, ECF No. 21-2, PageID.160-161.) Bivens and Rain then
spoke on the phone, and Bivens “told [him] exactly what . . . happened” with the
customer. (Bivens Dep. at 33:17, ECF No. 24-2, PageID.302.) Rain thereafter told
Bivens that he “[didn’t] want [her] calling on a customer [she] fe[lt] uncomfortable
with,” and he told her that he would assign that customer to an “inside sales” team
so that she did not have to have any interaction with that customer again. (Text
Messages, ECF No. 21-2, PageID.161.)
C
In the late summer and early fall of 2021, Zep suffered a downturn in its
business. (See Dep. of William Moody, Zep President and CEO, at 23:15-24:21,
32:16-33:5, ECF No. 21-5, PageID.246-247, 252-253.)

3

As a result of this

downtown, Zep decided to “cut[] costs” and reduce its employee headcount. (Id. at
24:21, PageID.247.) The way that Zep decided to reduce its workforce was to
eliminate certain underperforming sales territories and the TSRs that serviced those
territories. As Bill Moody, Zep’s President and CEO, explained, if a particular sales
territory was “under $240,000” in sales, it was not “paying for [itself].” (Id. at 18:45, PageID.244. See also id. at 25:6-26:10, PageID.248-249.) Those territories were
therefore “subject to be removed” as part of Zep’s downsizing. (See id. at 18:5-6,
PageID.244.)
At the time of Zep’s reduction in force, Bivens’ assigned territory was
generating “less than $100,000 a year” in sales. (Dep. of Sheila Nicodemus, Zep
Vice President of Human Resource Programs, at 98:2, ECF No. 21-4, PageID.222.)
Thus, because of the “size of her territory,” that territory, and Bivens’ position as a
TSR, was eliminated on September 14, 2021. (Id. at 97:8-19, PageID.221.)
In total, 23 Zep employees were “selected for the reduction in force.”
(Nicodemus Decl. at ¶ 3, ECF No. 21-6, PageID.257.) Of the employees laid off,
19 were white, one employee was Hispanic, and three, including Bivens, were
African American. (See id.) “20 of the 23 employees selected for termination were
men, three were women.” (Id.)

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II
Bivens filed this action against Zep on June 12, 2023. (See Compl., ECF No.
1.) In that pleading, Bivens brings three sets of claims against Zep under both state
and federal law: (1) claims that she was unlawfully retaliated against in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and
Michigan’s Elliot-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 et seq. (the
“ELCRA”) for lodging a complaint with her supervisor about the August 25, 2021,
customer meeting described above (Counts I and II of the Complaint), (2) claims
that she was subjected to a hostile work environment in violation of Title VII and
the ELCRA based on the sexual harassment that she says she experienced during the
August 25 customer meeting (Counts III and IV of the Complaint), and (3) claims
that she was discriminated against on the basis of her race in violation of Title VII
and the ELCRA (Counts V and VI of the Complaint).
Zep filed its motion for summary judgment on July 17, 2024. (See Mot., ECF
No. 21.) The Court has carefully reviewed the motion, Bivens’ response (see Resp.,
ECF No. 23), and Zep’s reply (see Reply, ECF No. 25), and it is now prepared to
rule on the motion.
III
Under Federal Rule of Civil Procedure 56, a movant is entitled to summary
judgment when it “shows that there is no genuine dispute as to any material fact.”

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SEC v. Sierra Brokerage Servs., Inc., 712 F.3d 312, 326-27 (6th Cir. 2013) (quoting
Fed. R. Civ. P. 56). When reviewing the record, “the court must view the evidence
in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor.” Id. But “the mere existence of a scintilla of evidence in
support of the [non-moving party’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for [that party].” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

Summary judgment is not

appropriate when “the evidence presents a sufficient disagreement to require
submission to a jury.” Id. at 251–52.
IV
A
The Court begins with Bivens’ retaliation claims under Title VII and the
ELCRA. These federal and state claims are reviewed under the same standard. See
Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir. 2012) (noting in
case where plaintiff brought a retaliation claim under both Title VII and the ELCRA
that “the ELCRA analysis is identical to the Title VII analysis”). As noted above,
in these claims, Bivens insists that Zep fired her in retaliation for complaining to her
supervisor about the sexual harassment she experienced during her August 25, 2021,
customer meeting.

6

“Title VII retaliation claims may be proved with direct evidence or by indirect
evidence via the McDonnell Douglas2 framework.” Redlin v. Grosse Pointe Pub.
Sch. Sys., 921 F.3d 599, 613 (6th Cir. 2019). “Under the [indirect evidence]
approach” that applies here, a plaintiff “must first establish a prima facie case of
retaliation by demonstrating” the following four elements:
(1) [the plaintiff] engaged in activity protected by Title
VII; (2) [the plaintiff’s] exercise of such protected activity
was known by the defendant; (3) thereafter, the defendant
took an action that was “materially adverse” to the
plaintiff; and (4) a causal connection existed between the
protected activity and the materially adverse action.
Id. (quoting Jones v. Johanns, 264 F. App’x 463, 466 (6th Cir. 2007)). “The burden
of establishing a prima facie case in a retaliation action is not onerous, but one easily
met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
If the plaintiff “succeeds in making out the elements of a prima facie case of
retaliation, the burden of production shifts to the employer to articulate a legitimate,
non-retaliatory reason for the termination.” Redlin, 921 F.3d at 613 (quoting
Mansfield v. City of Murfreesboro, 706 F. App’x 231, 236 (6th Cir. 2017) (cleaned
up)). “If the employer satisfies its burden of production, the burden shifts back to
[p]laintiff to show that the reason was a pretext for retaliation.” Id. at 614. (cleaned
up).

2

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
7

B
Even though Bivens’ burden at the prima facie stage is not a heavy one, she
has not carried it here. More specifically, she has not satisfied the second element
of her prima facie case. That element requires Bivens to show that Zep knew of her
protected activity, and to clear that hurdle, Bivens must present evidence that “her
protected activity was known to those who made th[e] decision” to terminate her
employment. Fenton v. HiSan, Inc., 174 F.3d 827, 832 (6th Cir. 1999). See also
Mulhall v. Ashcroft, 287 F.3d 543, 552-554 (6th Cir. 2002) (holding that plaintiff
had failed to show that defendant had knowledge of protected conduct where
plaintiff “failed to produce any evidence, direct or circumstantial, to rebut”
testimony that “the officials taking the adverse employment action [did not have
knowledge] of his protected activity”). Simply put, “the decisionmaker’s knowledge
of the protected activity is an essential element of [Bivens’] prima facie case of
unlawful retaliation.” Proffitt v. Metro. Gov’t Of Nashville & Davidson Cnty. Tenn.,
150 F. App’x 439, 442 (6th Cir. 2005) (affirming summary judgment in favor of
defendant on retaliation claim where plaintiff failed to show that decision-maker
knew of plaintiff’s protected activity).
Bivens has not presented any evidence that the decision-maker in her case
knew of her protected activity. And the undisputed evidence in the record shows
that he did not know. That evidence shows that (1) the decision on what territories

8

to remove, and thus, which employees to lay off, was made by Zep’s President and
CEO Bill Moody (see Nicodemus Dep. at 85:1-21, ECF No. 21-4, PageID.220), and
(2) at the time Moody decided to eliminate Bivens’ position, he did not know who
Bivens was, much less that she had engaged in any protected activity. (See Moody
Dep. at 26:11-13, 28:19-22, ECF No. 21-5, PageID.249, 251.) Indeed, Moody
testified that he “never had any contact with [Bivens] while she was employed with
Zep” and that he “didn’t even know who Ms. Bivens was until this [litigation] came
up a month [before he had his deposition taken].” (Id.) Because the undisputed
evidence establishes that the relevant decision-maker did not know about Bivens’
protected conduct, Bivens cannot satisfy her prima facie burden.
Bivens counters that it is “highly likely that [Zep’s] higher-ups were aware of
[her] complaint of sexual harassment” (Resp., ECF No. 23, PageID.273), but she has
not identified any actual evidence – direct or circumstantial – that Moody, the only
relevant decision-maker here, had such knowledge prior to her termination. Bivens’
assertion that Moody and/or other “higher-ups” must have known about her
protected conduct is pure speculation that is insufficient to stave off summary
judgment. See Mulhall, 287 F.3d at 552 (explaining that a plaintiff must identify
“specific facts” that relevant decision-maker knew about protected conduct that is
not based on “speculations, hunches, intuitions, or rumors.” (quoting Visser v.
Packer Eng’g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991)).

9

Bivens further counters that Zep should be deemed to have knowledge of her
protected conduct (of complaining about the customer’s harassment) because she
made her complaint to her direct supervisor, Rain. (See Resp., ECF No. 23,
PageID.271.) But it is undisputed that Rain was not involved in the decision to
eliminate Bivens’ territory or to terminate her employment. (See Rain Decl. at ¶ 9,
ECF No. 21-2, PageID.157.) Because Rain was not the relevant decision-maker, his
knowledge of her protected activity is insufficient to satisfy the second element of
Bivens’ prima facie case. See Fenton, 174 F.3d at 832 (holding that plaintiff failed
satisfy second element of her prima facie case for retaliation where, even though her
direct supervisor knew of her protected conduct, plaintiff was “unable to produce
any evidence that the relevant management decision-makers” knew of that activity).
Moreover, Bivens has presented no evidence that Rain informed the decision-makers
(or anyone in Zep’s upper-management) about her protected activity.
For all of these reasons, Bivens has not satisfied her prima facie case of
retaliation, and Zep is entitled to summary judgment on her retaliation claims.
V
The Court next turns to Bivens’ racial discrimination claims. It is difficult to
discern the precise nature of these claims, but as best the Court can tell from
reviewing Bivens’ Complaint and her response to Zep’s summary judgment motion,
Bivens’ discrimination claims encompass two types of alleged discrimination: (1)

10

the termination of her employment based on her race and (2) “distinct differences in
treatment [that she experienced] compared to her white male colleagues in similar
situations.” (Resp., ECF No. 23, PageID.281.)

The Court will review each

component of Bivens’ race discrimination claim separately below.
A
In order to survive summary judgment on these claims, Bivens must present
direct evidence of discrimination or sufficient indirect evidence of discrimination to
satisfy the McDonnell Douglas framework. See Redlin, 921 F.3d at 606 (applying
the McDonnell Douglas framework to plaintiff’s Title VII and ELCRA claims).
Bivens has chosen to rely upon indirect evidence, and the Court must therefore apply
the McDonnell Douglas framework to her claims. “Under this framework, the
plaintiff must first establish a prima facie case of discrimination, which requires her
to show that: ‘(1) she is a member of a protected group, (2) she was subject to an
adverse employment decision, (3) she was qualified for the position, and (4) she was
replaced by a person outside of the protected class.’” Thompson v. Fresh Products,
LLC, 985 F.3d 509, 522 (6th Cir. 2021) (quoting Carter v. Univ. of Toledo, 349 F.3d
269, 273 (6th Cir. 2003)). “Where, as here, an employee is laid off as part of a
reduction-in-force (RIF), the fourth requirement is modified and, rather than
showing that she was replaced, the plaintiff must present ‘direct, circumstantial, or
statistical evidence tending to indicate that the employer singled out the plaintiff for

11

discharge for impermissible reasons.’” Id. (quoting Skalka v. Fernald Env’t
Restoration Mgmt. Corp., 178 F.3d 414, 420 (6th Cir. 1997)).
As noted above, the “burden of establishing a prima facie case is not an
onerous one.” Redlin, 921 F.3d at 606. If Bivens satisfies her prima facie case, then
“the burden shifts to [Zep] ‘to articulate some legitimate, nondiscriminatory reason
for’ the adverse employment action. Should [Zep] do so, [Bivens] then must prove
by a preponderance of the evidence that the stated reasons were a pretext for
discrimination.” Id. at 607. (citations omitted) (cleaned up).
B
1
The Court begins with Bivens’ race discrimination claim based on her
termination. The parties do not appear to dispute that Bivens can satisfy the first
three elements of her prima facie case with respect to that claim: she is a member of
a protected class (she is both a woman and African American), she was subject to an
adverse employment action (her employment was terminated), and she was qualified
for her position. But Bivens’ prima facie case arising out of her termination fails at
the fourth element because she has not presented any evidence that Zep “singled
[her] out . . . for discharge for impermissible reasons.” Thompson, 985 F.3d at 522
(quoting Skalka, 178 F.3d at 420). And the evidence in the record suggests that she
was not singled out for such reasons. The overwhelming majority of the 23

12

employees who Zep fired as part of the reduction in force were white men. (See
Nicodemus Decl. at ¶ 3, ECF No. 21-6, PageID.257.) In short, Bivens has not
identified any evidence that her firing had anything at all to do with her race.
Bivens counters that there is at least a question of fact as to whether there was
a reduction in force at all. (See Resp., ECF No. 23, PageID.275-276.) She says that
Zep, “who has the burden of proof, provided no evidence of a RIF at all beyond a
declaration.” (Id., PageID.275.)

However, a sworn declaration is competent

evidence. See Fed. R. Civ. P. 56(c)(4). Moreover, both Nicodemus and Moody
testified about the reduction in force at length during their depositions. (See, e.g.,
Moody Dep. at 22-28, 32-33, ECF No. 21-5, PageID.245-253; Nicodemus Dep. at
106-108, ECF No. 21-4, PageID.225-227.) Contrary to Bivens’ contention, Zep has
presented substantial evidence of its reduction in force.
In any event, even if there was not a reduction in force, Bivens’ claim would
still fail at the fourth element of her prima facie case. In cases where there is not a
reduction in force, a plaintiff can satisfy the fourth element of the prima facie case
by showing that the plaintiff was replaced by someone outside of her protected class.
But the undisputed evidence shows that Bivens was not replaced and that “three
years later, no TSR [has been] assigned to the territory that [Bivens] held.” (Rain
Decl. at ¶ 11, ECF No. 21-2, PageID.158.)

13

Bivens nonetheless insists that she was “replaced by” a new white employee
named Kyle Mulcahy whom Zep hired shortly before Bivens was fired. But as Rain
stated in his sworn declaration, Zep hired Mulcahy to service a different geographic
region than the one Bivens was assigned to, a region that had a larger sales base and
was not affected by Zep’s reduction in force. (See id. at ¶¶ 10-11, PageID.157-158.)
Bivens has not identified any contrary evidence in the record that Mulcahy, or
anyone else, was hired to service her territory or to replace her.
For all of these reasons, Zep is entitled to summary judgment on Bivens’ race
discrimination claims arising out of her termination.
2
The Court next turns to Bivens’ claim that she “experienced distinct
differences in treatment compared to her white male colleagues in similar
situations.” (Resp., ECF No. 23, PageID.281.) This claim fails as a matter of law
because the alleged differences in treatment did not amount to adverse employment
actions sufficient to support a discrimination claim.
“‘An adverse employment action in the context of a Title VII discrimination
claim is a materially adverse change in the terms or conditions of employment
because of the employer’s actions.’ Materially adverse changes in the terms and
conditions of employment include ‘a termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material loss

14

of benefits, significantly diminished material responsibilities, or other indices that
might be unique to a particular situation.’” Kuhn v. Washtenaw Cnty., 709 F.3d 612,
625 (6th Cir. 2013) (citations omitted) (quoting Michael v. Caterpillar Fin. Servs.
Corp., 496 F.3d 584, 593–94 (6th Cir. 2007)).
The differences in treatment identified by Bivens do not rise to the level of
adverse employment action. For example, at her deposition, Bivens identified one
primary incident in which she said that she was “treated differently because of [her]
race.” (Bivens Dep. at 37:1-40:3, ECF No. 21-3, PageID.181-185.)

Bivens

explained that when the family member of a white employee, Kyle Ackerman,
passed away, Rain “rall[ied]” the other employees to support Ackerman and
encouraged employees to donate to Ackerman’s family. (Id. at 49:1-5, PageID.191.)
But Bivens says when she had two family members pass away, Rain did not
“acknowledge[] . . . either of them.” (Id. at 37:20-23, PageID.182.) Bivens also said
she felt once felt singled out during a sales meeting, and another time, while driving
with a co-worker, that co-worker discussed African American support for Donald
Trump.3 (See id. at 46:1-48:12, PageID.188-190.) These examples of different

3

Admissions by Bivens and other evidence in the record cast doubt on her claim –
which the Court accepts as true for purposes of the pending motion – that she was
treated differently based upon her race. For instance, Bivens acknowledged that
when her aunt passed away, she was allowed to take “a couple of days” off so that
she could attend her aunt’s funeral out of state. (Bivens Dep. at 39:25-40:3, ECF No.
24-2, PageID.184-185.) In addition, it is undisputed that when the health of Bivens’
grandmother began to deteriorate, Rain approved her request to take time off to see
15

treatment, even when considered collectively, do not amount to materially adverse
changes in Bivens’ employment, and thus this treatment of Bivens cannot support a
discrimination claim.4
For all of these reasons, Zep is entitled to summary judgment on Bivens’ racial
discrimination claims.
VI
Finally, the Court turns to Bivens’ claim that she was subjected to a hostile
work environment in connection with the sexual harassment that she experienced
during the August 25, 2021, customer meeting. “In order to establish a prima facie
case of a hostile work environment based on sexual harassment [under Title VII or
the ELCRA], [a] plaintiff must show by a preponderance of the evidence: (1) that
she was a member of a protected class; (2) that she was subjected to unwelcome
her. (See Rain Decl. at ¶ 8, ECF No. 21-2, PageID.156; May 13, 2021, email, ECF
No. 21-2, PageID.163.) Finally, Ackerman, the white employee who Rain allegedly
treated more favorably than Bivens, was also laid off as part of Zep’s September
2021 reduction in force. (See Rain Decl. at ¶ 9, ECF No. 21-2, PageID.157.)
4

The examples of different treatment that Bivens identifies would appear to fit
better as support for a hostile work environment claim as opposed to a claim of
employment discrimination. But in her response to Zep’s summary judgment
motion, Bivens raises these examples of “distinct” treatment in an effort to save her
racial discrimination claim. (See Resp., ECF No. 23, PageID.281.) In any event,
even if Bivens meant to raise these examples of different treatment to support a
hostile work environment claim, that claim would still fail because the examples,
even when considered collectively, are not “sufficiently severe or pervasive to alter
the conditions of [Bivens’] employment and create an abusive working
environment.” Khalaf v. Ford Motor Co., 973 F.3d 469, 482 (6th Cir. 2020) (quoting
Phillips v. UAW Int’l, 854 F.3d 323, 327 (6th Cir. 2017)).
16

sexual harassment; (3) that the harassment was based on sex; (4) that the harassment
unreasonably interfered with her work performance by creating a hostile, offensive,
or intimidating work environment; and (5) that there is a basis for employer
liability.” Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir. 2008). Zep
argues that Bivens cannot satisfy the fifth element of her prima facie case because
she has failed to identify any basis for holding Zep liable for her harassment by its
customer.
As the Sixth Circuit has explained, “[e]mployers are liable for the actions of
nonemployees only when they knew or should have known of the offensive behavior
and failed to take immediate and appropriate action.” Wheaton v. N. Oakland Med.
Ctr., 130 F. App’x 773, 787 (6th Cir. 2005). See also Elezovic v. Ford Motor Co.,
697 N.W.2d 851, 861 (Mich. 2005) (“It is the case in this area of the law that
employer responsibility for sexual harassment can be established only if the
employer had reasonable notice of the harassment and failed to take appropriate
corrective action”); Hales v. Casey’s Marketing Co., 886 F.3d 730, 735 (8th Cir.
2018) (explaining in case where plaintiff alleged she was subjected to harassing
conduct by defendant’s customer that “[a]n employer’s liability [for the conduct of
a customer] turns on whether the employer was aware of the conduct and whether it

17

took appropriate action to remedy the circumstances in a timely and appropriate
manner”).5
Here, Bivens has not satisfied either of the elements required to hold Zep
liable for the customer’s harassing conduct. First, Bivens has not identified any
evidence that Zep was aware of any inappropriate conduct by the customer before
he harassed Bivens. Nor has she pointed to any evidence that Zep should have
known beforehand that the customer presented a risk of harassment. And Zep has
presented evidence that prior to the August 25 incident, it had not received any
complaints about that customer. (See Rain Decl. at ¶ 8, ECF No. 21-2, PageID.156.)
Second, the undisputed evidence shows that as soon as Zep learned about the
customer’s harassment of Bivens, it took immediate action. It re-assigned the
customer to an internal sales team (that Bivens was not a part of) because Zep did
not “want [Bivens] calling on a customer [she] fe[lt] uncomfortable with.” (Text
Messages, ECF No. 21-2, PageID.161.)

5

See also Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754, 756 (9th Cir.
1997) (“We now hold that an employer may be held liable for sexual harassment on
the part of a private individual, such as the casino patron, where the employer either
ratifies or acquiesces in the harassment by not taking immediate and/or corrective
actions when it knew or should have known of the conduct”); Moore v. Countryside
Care Ctr., Inc., No. 2:13-cv-15254, 2014 WL 4110760, at *3 (E.D. Mich. Aug. 19,
2014) (“Despite the fact that the racial harassment was prop[a]gated by a
resident/customer and not the employer itself, the Defendants may be held liable if
they knew or should have known about the conduct and failed to take prompt and
appropriate corrective action”).
18

Under these circumstances, Zep is entitled to summary judgment on Bivens’
sexual harassment hostile work environment claim. See Bell v. Toledo Gaming
Ventures, No. 3:21-CV-770, 2023 WL 6383627, at * 10 (N.D. Ohio Sept. 30, 2023)
(granting summary judgment on harassment claim arising out of conduct of
defendant’s customers where defendant addressed the conduct and did not require
plaintiff to continue to work with those customers); U.S. E.E.O.C. v. GNLV Corp.,
No. 2:06-cv-01225, 2014 WL 7365871, at * (D. Nev. Dec. 18, 2014) (granting
summary judgment in favor of defendant on hostile work environment claim arising
out of alleged racial harassment where, among other things, “[i]n each instance
where [the victim] reported the harassing conduct [by a customer], [the victim] was
never subjected to harassment by the offending customer again”).6
For all of these reasons, Zep is entitled to summary judgment on Bivens’
hostile work environment claims.
VII
For all of the reasons explained above, IT IS HEREBY ORDERED that
Zep’s motion for summary judgment (ECF No. 21) is GRANTED.

Dated: November 22, 2024

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

6

Bivens has not cited a single decision in which any court has denied summary
judgment to an employer on a hostile work environment claim involving harassment
of an employee by a customer under similar circumstances.
19

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on November 22, 2024, by electronic means and/or
ordinary mail.
s/Holly A. Ryan
Case Manager
[phone]

20