Smith v. Northstar Dining Chesterfield, LLC et al
Filing
24
OPINION AND ORDER GRANTING IN PART and DENYING IN PART 18 Motion for Summary Judgment. Signed by District Judge Terrence G. Berg. (Chubb, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACQUELINE SMITH,
v.
Plaintiff,
Case No. 12-14311
NORTHSTAR DINING
CHESTERFIELD, LLC, et al.,
HON. TERRENCE G. BERG
HON. MICHAEL J. HLUCHANIUK
Defendants.
/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT
Plaintiff Jacqueline Smith brought suit against her former employer,
Defendants Northstar Dining Chesterfield, LLC and Northstar Restaurants, LLC
on September 27, 2012 alleging that she was forced to work “off the clock” without
compensation in violation of the Fair Labor Standards Act, 29 U.S.C.A. § 201, et
seq. (the “FLSA”) and that she suffered religious discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A § 2000e, et seq.
(“Title VII”) and Michigan’s Elliott-Larsen Civil Rights Act, MCLA 37.2101, et seq.
(the “ELCRA”).
On December 6, 2013, Defendants moved for summary judgment on all of
Plaintiff’s claims (Dkt. 18). Plaintiff filed a response (Dkt. 21) and Defendants filed
a reply (Dkt. 22). The Court heard oral argument on February 10, 2014. Upon
careful review and consideration of the pleadings, supporting briefs and oral
arguments, the Court finds that there are disputed issues of material fact regarding
Plaintiff’s unpaid wages claim under the FLSA and Plaintiff’s retaliation claims
under Title VII and the ELCRA. However, summary judgment may be entered on
Plaintiff’s religious discrimination claims under Title VII and the ELCRA because
Plaintiff has not submitted any evidence showing that Defendants were motivated
or influenced by Plaintiff’s religion when making employment decisions.
Accordingly, it is ORDERED that Defendants’ motion for summary judgment (Dkt.
18) is GRANTED IN PART and DENIED IN PART.
I.
FACTUAL BACKGROUND
As a preliminary matter, the Court notes that neither Defendants nor Plaintiff
followed the Court’s practice guidelines for motions for summary judgment that are
available on the Court’s website. These practice guidelines provide as follows:
A Rule 56 motion must begin with a “Statement of Material Facts.” Such a
Statement is to be included as the first section of the Rule 56 Motion. The
Statement must consist of separately numbered paragraphs briefly
describing the material facts underlying the motion, sufficient to support
judgment. Proffered facts must be supported with citations to the
pleadings, interrogatories, admissions, depositions, affidavits, or
documentary exhibits. Citations should contain page and line references,
as appropriate.... The Statement of Material Facts counts against the
page limit for the brief. No separate narrative facts section shall be
permitted.
The response to a Rule 56 Motion must begin with a “Counter-statement
of Material Facts” stating which facts are admitted and which are
contested. The paragraph numbering must correspond to moving party’s
Statement of Material Facts. If any of the moving party’s proffered facts
are contested, the non-moving party must explain the basis for the factual
disagreement, referencing and citing record evidence. Any proffered fact
in the movant’s Statement of Material Facts that is not specifically
contested will, for the purpose of the motion, be deemed admitted. In
similar form, the counter-statement may also include additional facts,
disputed or undisputed, that require a denial of the motion.1
1
Available at -- http://www.mied.uscourts.gov/Judges/guidelines/topic.cfm?topic_id=459
2
Both Defendants’ motion for summary judgment and Plaintiff’s response included
separate narrative fact sections in violation of the Court’s practice guidelines. While
Defendants’ “Statement of Facts” was not organized in separately numbered
paragraphs, Plaintiff’s response omitted the “Counter-statement” and included a
“Statement of Facts” that did not correspond to Defendants’ statement. Without a
statement and counter-statement, the parties fail to identify clearly which material
facts are subject to dispute.2 The Court nonetheless conducted a thorough review of
parties’ briefs, oral arguments, and exhibits and gleaned the following facts, which
are viewed in a light most favorable to Plaintiff as the non-moving party.
Plaintiff, a Baptist, was employed by Defendants from September 2009
through July 2012 at an Arby’s fast food restaurant. (Dkt. 21, Ex. 1; Dkt. 18, Ex. A.)
Plaintiff began work as a crewmember but was later promoted to shift manager in
February 2010. (Dkt. 21, Ex. 2 at ¶¶ 2, 7.) When Plaintiff initially applied, she
noted that she was available to work any shift from Monday through Saturday but
that she wanted Sundays off to go to church. (Dkt. 21, Ex. 1; Dkt. 21, Ex. 2 at ¶ 2.)3
Despite this request, Plaintiff was sometimes scheduled to work afternoons and
evenings on Sundays. (E.g., Dkt. 21, Ex. 3 at 3.)
Plaintiff’s first general manager scheduled Plaintiff for Sundays off, but still
gave her over 30 hours each week. (Dkt. 21, Ex. 2 at ¶ 2.) In November 2009, that
See, e.g., Akines v. Shelby Cnty. Gov’t, 512 F. Supp. 2d 1138, 1147 (W.D. Tenn. 2007) (deeming the
defendant’s statement of undisputed material facts as having been admitted by the plaintiffs, where
the plaintiffs failed to file a counter-statement of material facts, as directed by local rule).
3 The parties provided employee schedules from August 30, 2010 through February 13, 2012. (Dkt.
18, Ex. F; Dkt. 21, Ex. 3.) This seventy-five-week period does not encompass Plaintiff’s entire period
of employment. According to the schedules that were provided, Plaintiff was scheduled for 16
Sundays during this period, never for a shift that commenced earlier than 3 pm. (Id.)
2
3
general manager resigned and then-shift manager Debbie Ereaux filled in as
general manager until Defendants hired George Crimins in December 2009.4 (Id. at
¶¶ 4-5.) Once Mr. Crimins was hired, Ms. Ereaux continued as the assistant
manager. (Id. at ¶ 5.) During this period, Plaintiff was scheduled to work on
Sundays. (Id. at ¶ 5.)
Friction soon developed between Plaintiff and her supervisors, Mr. Crimins
and Ms. Ereaux. Mr. Crimins issued three critical performance write-ups about
Plaintiff in March 2010. (Dkt. 21, Ex. 6 at 2-4.) Plaintiff received three additional
write-ups in July, August, and September 2010 (Id. at 5-7.) In early September
2010, Plaintiff and at least two other co-workers filed complaint letters about Mr.
Crimins with the district manager, Wadi Metti. (Dkt. 21, Ex. 5 at 2-9.) Mr. Metti
requested that Plaintiff write the letter. (Dkt. 18 at 5.) Plaintiff and her co-workers
reported issues with pay shortages, false performance write-ups, berating of
employees in front of customers, and harassment. (Dkt. 21, Ex. 5 at 2-9.) Mr.
Crimins was subsequently fired. (Dkt. 18 at 5.)
After the departure of Mr. Crimins, tension in the workplace nevertheless
continued. In September 2010, Ms. Ereaux was promoted to general manager. (Dkt.
18, Ex. G at ¶ 4.) Plaintiff was scheduled to work on Sundays through the end of
October 2010. (Dkt. 21, Ex. 3 at 3-15.) At that point, Defendants hired another
employee to relieve Plaintiff of working on Sundays and most closing shifts. (Dkt. 21
at 8.)
Defendants dispute that they employed Ms. Ereaux at this time. (Dkt. 18 at 7.) However, neither
Ms. Ereaux’s affidavit nor the record discloses when Ms. Ereaux was first hired and what her
position was.
4
4
In mid-March 2011, Ms. Ereaux asked Plaintiff to volunteer to work one
Sunday per month. (Id.) Plaintiff declined, reiterating her desire to attend church
on Sundays and offering to write out her availability. (Id. at 8-9.) On March 14,
2011, Plaintiff noted her availability in the manager’s log, requesting Sundays off
and no closing shifts. (Dkt. 18, Ex. D.) On March 22, 2011, Ms. Ereaux issued
Plaintiff a negative performance write-up for leaving the freezer door open resulting
in a loss of product. (Dkt. 21, Ex. 6 at 8.) On March 29, 2011, Plaintiff complained to
Mr. Metti that Ms. Ereaux was harassing her. (Dkt. 21 at 10.) For the week of
March 28, Ms. Ereaux reduced Plaintiff’s average hours from approximately thirtythree to twenty a week. (Dkt. 21, Ex. 3 at 43.)
At some point during or after April 2011, Plaintiff sent Mr. Metti a written
complaint about Ms. Ereaux. (Dkt. 21, Ex. 5 at 10-13.)5 In the letter, Plaintiff states
that Ms. Ereaux discriminated against her, reduced her hours, scheduled her for
Sundays, pressured her to work “off the clock,” and generally “made Arby’s into an
unfair and hostile workplace.” (Id. at 10-11.) Plaintiff filed a complaint with the
United States Equal Employment Opportunity Commission (“EEOC”) on July 12,
2011 for religious discrimination. (Dkt. 21, Ex. 7 at 2-4.) The complaint was mailed
to Defendants on July 19, 2011. (Id. at 4.) Plaintiff was never scheduled to work
another Sunday. (Dkt. 21, Ex. 3 at 64-96.) However, the week of July 18, 2011,
Plaintiff’s hours were further reduced to an average of approximately sixteen per
week. (Id. at 64-84.)
5
The letter is undated, but the body contains a mention of April 21. (Dkt. 21, Ex. 5 at 12.)
5
An unsuccessful EEOC mediation took place in January 2012. (Dkt. 21 at 9.)
Beginning the week of December 5, 2011, Ms. Ereaux raised Plaintiff’s hours to an
average of approximately twenty-seven per week. (Dkt. 21, Ex. 3 at 86-96.) Plaintiff
resigned on July 19, 2012. (Dkt. 18, Ex. A.)
II.
ANALYSIS
Plaintiff has brought five counts against Defendants: (1) violation of the FLSA
by not paying Plaintiff for the hours she worked “off the clock”; (2) violation of Title
VII by subjecting Plaintiff to disparate treatment because of her religion and
denying Plaintiff a religious accommodation; (3) violation of the ELCRA for the
reasons given under Count II; (4) violation of Title VII for retaliating against
Plaintiff for requesting a religious accommodation and for complaining about
Defendants’ discriminatory employment practices both internally and formally to
the EEOC; and (5) violation of the ELCRA for the reasons given under Count IV.
A. Legal Standard
Defendants have moved for summary judgment on all five of Plaintiff’s claims,
essentially arguing that Plaintiff has not offered and cannot offer sufficient evidence
to show that she: is entitled to any additional wages, was denied a religious
accommodation, or suffered discrimination and retaliation because of her religion.
Summary judgment is proper when “the pleadings, deposits, answers to
interrogatories, and admissions on file, together with exhibits, if any, show that
there is no genuine issue as to any material fact.” See Fed. R. Civ. P. 56(c). A fact is
material only if it might affect the outcome of the case under the governing law. See
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). On a motion for summary
judgment, the Court must view the evidence, and any reasonable inferences drawn
from the evidence, in the light most favorable to the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Redding v. St. Edward, 241 F.3d 530, 531 (6th Cir. 2001).
The moving party has the initial burden of demonstrating an absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
If the moving party carries this burden, the party opposing the motion “must come
forward with specific facts showing that there is a genuine issue for trial.”
Matsushita, 475 U.S. at 587. The Court must determine whether the evidence
presents a sufficient factual disagreement to require submission of the challenged
claims to a jury or whether the moving party must prevail as a matter of law. See
Anderson, 477 U.S. at 252 (“The mere existence of a scintilla of evidence in support
of the plaintiff’s position will be insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff.”).
Moreover, the trial court is not required to “search the entire record to establish
that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479–80 (6th Cir. 1989). Rather, the “nonmoving party has an
affirmative duty to direct the court’s attention to those specific portions of the
record upon which it seeks to rely to create a genuine issue of material fact.” In re
Morris, 260 F.3d 654, 655 (6th Cir. 2001).
7
Here, there is clearly a dispute over certain material facts concerning Plaintiff’s
unpaid wages and Defendants’ alleged retaliation, such that summary judgment on
those claims would not be appropriate. However, Defendants are entitled to
summary judgment with respect to Plaintiff’s claims of religious discrimination.
B. Claim for Unpaid Wages under the FLSA
Plaintiff alleges in Count I that Defendants did not compensate her for work she
performed “off the clock” in violation of the FLSA, while Defendants counter that
they did not have actual or constructive notice. The FLSA requires employers to pay
covered employees at least the federal minimum wage for all hours worked. See 29
U.S.C. § 206. It is well established that “an FLSA plaintiff must prove by a
preponderance of the evidence that he or she performed work for which he or she
was not properly compensated.” White v. Baptist Memorial Health Care Corp., 699
F.3d 869, 873 (6th Cir. 2012) (quoting Myers v. Copper Cellar Corp., 192 F.3d 546,
551 (6th Cir. 1999)).
Because an employer must have an opportunity to comply with the FLSA, the
employee’s burden is to establish that the employer “knows or has reason to believe
that [the employee] is continuing to work.” 29 C.F.R. § 785.11. An employer with a
reasonable process in place for an employee to report uncompensated work time “is
not liable for non-payment if the employee fails to follow the established process.”
White, 699 F.3d at 876-77. Such an employer could be liable, however, if there is
evidence that the employer discouraged reporting or otherwise should have known
that an employee was not being fairly compensated. Id.
8
When viewed in the light most favorable to the Plaintiff, a reasonable jury
could find that Defendants were or should have been aware of Plaintiff working “off
the clock” without compensation. Plaintiff has alleged that on several occasions she
notified the shift manager, the general manager, or the district manager of time she
worked without pay and of certain managers’ alleged practice of requiring
employees to work “off the clock.” Plaintiff relies primarily on her own affidavit
(Dkt. 21, Ex. 2) and her own answers to Defendants’ interrogatories (Dkt. 21, Ex. 4
at 2) in support of these allegations. Defendants counter that one general manager
to whom Plaintiff claims to have complained was not actually employed at the time
Plaintiff alleges the conversation took place.6 (Dkt. 18 at 7.) However, even if
proven, this fact would account for only one of the six instances in which Plaintiff
alleges that she worked without compensation, often at the direction of managerial
staff, or complained to managerial staff about unpaid wages. (Dkt. 21, Ex. 4 at 2.)
Additionally, Plaintiff relies on a letter sent to the district manager in 2010
detailing a 9-hour pay shortage that she “let George known about” and noted in the
manager’s log as instructed by the district manager during a site visit. (Dkt. 21, Ex.
Whether this conversation took place is yet another fact in dispute. Plaintiff claims to have
complained to General Manager Debbie Ereaux in December 2009 about unpaid hours. (Dkt. 21 at
13.) According to Plaintiff, Ms. Ereaux, then a shift manager, was temporarily working as the
general manager until a new general manager was hired. (Dkt. 21, Ex. 2 at ¶ 4.) Defendants respond
that this conversation could not have happened in December 2009 because Ms. Ereaux was not
employed by Defendants at that time. (Dkt. 18 at 7.) Defendants cite to Ms. Ereaux’s affidavit in
which Ms. Ereaux states that she became General Manager “on or about September 1, 2010” but Ms.
Ereaux adds that she had been shift manager for “approximately seven months prior to taking over
as General Manager.” (Dkt. 18, Ex. G at ¶¶ 4, 6.) (emphasis added). Plaintiff also notes in a
complaint letter that Ms. Ereaux was hired as general manager in September 2010. (Dkt. 21, Ex. 5
at 10.) Neither this letter, nor Ms. Ereaux’s affidavit, nor the record appear to disclose when Ms.
Ereaux was first hired and what her position was at that time. On this record, it is just as reasonable
to conclude that the disputed conversation merely took place at a different time than that which
Plaintiff recalled, perhaps at a time when Ms. Ereaux was filling in as general manager or when she
was still a shift manager, as to conclude that it never happened at all.
6
9
5 at 3.) The district manager acknowledges receiving this complaint in his affidavit.
(Dkt. 18, Ex. E at ¶21.) Defendants dispute that Plaintiff raised the issue of unpaid
wages before filing suit and further argue that the 2010 complaint letter, if it can be
construed as notice at all, is insufficient. (Dkt. 18 at 7.)
Defendants also argue that they are not liable for any unpaid wages because
Plaintiff allegedly failed to take advantage of existing mechanisms for reporting
wage issues. (Id.) First, Defendants do not specify what complaint procedure
Plaintiff ignored – other than to cite to some excerpts from the employee handbook.
(Dkt. 18 at 3, 6-7.) Among these excerpts is one on compensation that simply
instructs employees to “report any perceived errors” in pay to their managers, which
Plaintiff alleges that she did on more than one occasion, but the handbook excerpts
fail to provide detail on how the reporting should be done. (Dkt. 18, Ex. C at 5.)
According to the record, Plaintiff did report at least one such error to her manager.
In 2011, she apparently punched in thirty-eight minutes after she started working.
(Dkt. 21, Ex. 9 at 2.) Plaintiff left her manager a note, asking that her timecard be
adjusted to include the extra time worked.7 (Id.). Whether Plaintiff’s actions were
sufficient to constitute compliance with the reporting instruction in the handbook
and whether Plaintiff consistently reported such errors are genuine issues of
material fact.
Second, contrary to defendant’s argument, failure to follow required procedures
is not an absolute bar to recovery. For example, as alleged here, a defendant may
Josh, another employee, alerted Ms. Ereaux to a timecard error in a similar manner. He left Ms.
Ereaux an undated note stating that he arrived at 4 “but didn’t clock in till 5” and asked Ms. Ereaux
to “fix that.” (Dkt. 18, Ex. D.)
7
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not rest on a plaintiff’s failure to follow reporting procedures if it is alleged that a
defendant was “otherwise notified of the [plaintiff’s] unreported work.” White, 699
F.3d at 876. Plaintiff has not only alleged that she worked “off the clock” and
informed her general and district managers, but also that all these incidents were
willful. (Dkt. 1 at ¶ 29.) Therefore, her claim is not barred and it still falls within
the applicable three-year statute of limitations despite Defendants’ argument to the
contrary. 29 U.S.C. § 255(a). Consequently, the Court also declines to find the claim
precluded by the equitable principle of laches.
In light of the alleged facts, the Court cannot conclude that Plaintiff’s version
of the events is “so utterly discredited by the record that no reasonable jury could
believe it.” Coble v. City of White House, Tenn., 634 F.3d 865, 870 (6th Cir. 2011);
see also Morrison, 583 F.3d at 408. The record discloses sufficient issues of material
fact on the issue of whether Plaintiff worked “off the clock” hours and attempted to
notify management about them. Consequently, Defendants’ motion for summary
judgment must be denied as to Plaintiff’s claim for unpaid wages under the FLSA.
C. Plaintiff’s Religious Discrimination Claims under Title VII and the
ELCRA
Plaintiff alleges in Count II that Defendants violated Title VII when they
discriminated against her on the basis of her faith by treating her differently than
her coworkers and by denying her religious accommodation request to have
11
Sundays off to attend church. (Dkt. 1 at ¶¶ 35-36.) Plaintiff makes the same
allegations in Count III under the ELCRA. (Id. at ¶¶ 42-43.)8
a. Disparate Treatment Claim
Plaintiff asserts claims of religious discrimination under the ELCRA and
Title VII, alleging disparate treatment. (Id. at ¶¶ 35, 42.) Such claims brought
under the ELCRA are analyzed using the same framework applicable under Title
VII. Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004). To successfully
assert a claim of religious discrimination, Plaintiff must present direct evidence of
discrimination or a prima facie case based on circumstantial evidence subject to the
McDonnell Douglas burden-shifting framework. Tepper v. Potter, 505 F.3d 508, 515
(6th Cir. 2007). Under this framework, the burden of production shifts between the
parties but the burden of persuasion always remains with the Plaintiff. White v.
Baxter Healthcare Corp., 533 F.3d 381, 392 (6th Cir. 2008).
In this case, Plaintiff does not claim to offer any direct evidence of
discrimination. (See Dkt. 21 at 14.) As a result, Plaintiff bears the initial but “not
onerous” burden of establishing a prima facie case by a preponderance of the
evidence by showing (1) that she was a member of a protected class, (2) that she
In their motion for summary judgment, Defendants construed Plaintiff’s complaint to include a
hostile work environment claim on the basis of religion under Title VII. (Dkt. 18 at 12.) However,
Plaintiff did not include such a count in her complaint. Although Plaintiff alleged that Defendants
created a “hostile and retaliatory environment” and a “hostile environment,” these factual
allegations were framed within the context of a retaliation claim. (See Dkt. 1 at ¶¶ 13, 19.) Even if
the Court were to construe Plaintiff’s allegations as stating a separate hostile work environment
claim, Plaintiff would be unable to establish a prima facie case. Such a case requires a showing that
Plaintiff was subjected to unwelcomed harassment on the basis of her protected status. Hafford v.
Seidner, 183 F.3d 506, 512 (6th Cir. 1999). As discussed in this opinion, Plaintiff has not presented
any evidence that anyone ever made even an innocuous comment about her faith, let alone harassed
her for it.
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experienced an adverse employment action, (3) that she was qualified for the
position, and (4) that she was replaced by a person outside of the protected class or
that she was treated differently than similarly situated employees. Baxter, 533 F.3d
at 391 (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If
Plaintiff succeeds, the burden of production “then shifts to the employer to offer a
legitimate, non-discriminatory explanation for its actions; finally, the burden shifts
back to the plaintiff to show pretext.” Chattman v. Toho Tenax Am., Inc., 686 F.3d
339, 347 (6th Cir. 2012).
Considering these elements, it is clear that Plaintiff cannot establish a prima
facie case. Defendants do not dispute that Plaintiff is a member of a protected class
and was qualified for her positions. (Dkt. 18 at 10.) Although Plaintiff has, under
the standard for this motion, offered evidence that she suffered an adverse
employment action in the form of reduced hours in comparison to her co-workers’
hours, she does not establish whether or how those co-workers were similarly
situated, or even what their availability was, making any meaningful comparison
with co-workers’ schedules difficult. (Dkt. 21 at 5; Dkt. 21, Ex. 5 at 10-13.) Plaintiff’s
hours were markedly reduced, but the reduction in her hours corresponds both with
her refusal to work closing shifts as well as her reiteration of her request to be
allowed Sundays off.
Defendants argue that the reduction of hours was in response to Plaintiff’s
voluntary request for day shifts on weekdays and Saturdays (Dkt. 18 at 11), which
Plaintiff acknowledges submitting. (Dkt. 21, Ex. 5 at 12.) In addition, Defendants
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argue that it would create impractical scheduling difficulties to continue to schedule
Plaintiff for the same number of hours given her refusal to work Sundays or nights.
(Dkt. 18 at 11.) Scheduling Plaintiff for the same number of hours would, according
to Defendants, require that other employees be scheduled for shorter shifts on a
regular basis to their detriment. (Id.) These explanations are reasonable.
Ultimately, Plaintiff has offered no evidence that the motivation for any
adverse employment action or alleged harassment was her religion or her religious
activities. Crucial to the discrimination inquiry under Title VII is whether Plaintiff
establishes “that the defendant had a discriminatory intent or motive for taking a
job-related action.” Chattman, 686 F.3d at 346 (quoting Ricci v. DeStefano, 557 U.S.
577 (2009)). Plaintiff does not allege that any individual ever made derogatory or
even innocuous comments directed toward her faith, questioned the sincerity of her
beliefs, or harassed, disciplined or singled her out in any way because she is a
Baptist. (Dkt. 21, Ex. 4 at 2-4.) On these facts, Plaintiff may have shown that she
was singled out for a reduced schedule, but not in any way because of her religious
beliefs.
There is no evidence to support a claim that religious discrimination was
more likely than not the basis of any job-related action over other more reasonable
explanations. Under Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the Court
finds that “reasonable jurors” could not “find by a preponderance of the evidence
that the plaintiff is entitled to a verdict”—there is no evidence upon which a jury
could properly find a verdict for Plaintiff on this claim.
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Without finding a prima facie case, the Court does not need to reach whether
Plaintiff made a showing of pretext. Defendants’ motion as to Plaintiff’s two claims
of religious discrimination is granted.
b. Religious Accommodation Claim
i. Under Title VII
Plaintiff also asserts a religious accommodation claim under Title VII in
Count II of her complaint. (Dkt. 1 at ¶ 36). While discrimination cases follow the
McDonnell Douglas framework, accommodation cases follow the framework first
announced in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 (1977). To
successfully assert her accommodation claim, Plaintiff must first establish a prima
facie case by showing that (1) she holds a sincere religious belief that conflicts with
an employment requirement; (2) she has informed the employer about the conflicts;
and (3) she was discharged or disciplined for failing to comply with the conflicting
employment requirement. Tepper, 505 F.3d at 514 (quoting Smith v. Pyro Mining
Co., 827 F.2d 1081, 1085 (6th Cir. 1987)). If Plaintiff can establish a prima facie
case, Defendants will have the burden to show that they could not reasonably
accommodate Plaintiff without bearing more than a de minimis cost. Tepper, 505
F.3d at 514.
Plaintiff cannot satisfy the third prong of her prima facie case, that she was
discharged or disciplined because of failing to comply with an employment
requirement that conflicted with her religious belief, even when the facts are viewed
in the light most favorable to her. Though it is not clear whether working on
15
Sundays was an actual “employment requirement” in this case, Plaintiff satisfies
the first prong as neither Defendants nor the Court question the sincerity of
Plaintiff’s religious belief or the fact that she was occasionally scheduled to work on
Sundays in conflict with her request. (Dkt. 18 at 4, 13.) Plaintiff’s written requests
for Sundays off do not specify that the requests were made pursuant to a religious
conviction (Dkt. 21, Ex. 1), but Plaintiff satisfies the second prong because
Defendants acknowledged in a hearing on February 10, 2014 that they were aware
of Plaintiff’s desire to go to church. (Tr. at 3:1-10.) There is insufficient evidence,
however, for a reasonable jury to find that Plaintiff was discharged or disciplined
for requesting Sundays off to attend religious services.
1. Discipline
It is not entirely clear from the pleadings exactly what discipline Plaintiff
alleges she suffered for requesting her religious accommodation. In her response,
Plaintiff directs the Court to the discussion of her prima facie case within the
discrimination context, but that analysis requires evidence of an “adverse
employment action” and is thus not directly analogous to the “discharged or
disciplined” inquiry applicable to the accommodation context. In fact, this Circuit
has declined to find that “discharged or disciplined” can be proven by a showing of
any possible adverse employment action. Reed v. Int’l Union, United Auto.,
Aerospace & Agr. Implement Workers of Am., 569 F.3d 576, 580-81 (6th Cir. 2009).
Plaintiff was written up on numerous occasions for failing to follow proper
closing procedures (Dkt. 18, Ex. B) and had to return her restaurant keys when she
16
informed her general manager that she could no longer work closing shifts. (Dkt. 21
at 9.) However, Plaintiff was also promoted to shift manager in February 2010.
(Dkt. 21, Ex. 2, ¶ 7.) Plaintiff does not provide evidence to contest Defendants’
assertion that she retained her title of shift manager and corresponding pay grade
until she resigned. (See Dkt. 21, Ex. 2; Dkt. 21, Ex. 6; Dkt. 18, Ex. E at ¶¶ 7-9.)
Furthermore, Plaintiff does not assert that she was ever disciplined either for
requesting Sundays off or for failing to report to work on those Sundays on which
she was scheduled. In fact, according to the schedules Plaintiff submitted, she was
never scheduled to work on Sunday after her first EEOC complaint was mailed to
defendants on July 19, 2011. (Dkt. 21, Ex. 3 at 63-96; Dkt. 21 at 8.) The last Sunday
Plaintiff worked was July 17, 2011; if her religious accommodation request was
being ignored before, it was apparently honored afterward. (Dkt. 21, Ex. 3 at 63.)
While the Court recognizes that Plaintiff claims her hours were reduced and
that this caused financial strain (Dkt. 21 at 10), in this Circuit, “more than loss of
pay is required to demonstrate discipline or discharge.” Tepper, 505 F.3d at 514
(holding that a reduction in annual pay resulting from not working on Saturdays is
insufficient to demonstrate discipline or discharge). There is no evidence that
Defendants reduced Plaintiff’s hours or disciplined her in any way because of her
religion or her religious activities. In addition, Plaintiff’s request was apparently
honored consistently after the EEOC complaint was filed. Without more, a
reasonable jury could not find that Plaintiff was disciplined for requesting and
insisting on her religious accommodation.
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2. Discharge
In lieu of discipline, Plaintiff can assert a religious accommodation claim
under Title VII by showing she was discharged for failing to comply with the
conflicting employment requirement. However, Plaintiff was not discharged; she
voluntarily resigned. (Dkt. 18, Ex. A.) To remedy this potential defect in her case,
Plaintiff alleges that she was constructively discharged because of her general
manager’s “harassment and consistent under scheduling.” (Dkt. 21 at 15.)
Constructive discharge is found when the employer deliberately creates
working conditions that are so intolerable that the employee is forced to resign.
Laster v. City of Kalamazoo, 746 F.3d 714, 727 (6th Cir. 2014). To establish
constructive discharge, Plaintiff must produce evidence to show that (1) Defendants
deliberately created intolerable working conditions, as perceived by a reasonable
person in Plaintiff’s shoes, (2) with the intention of forcing Plaintiff to quit. Id. at
727-28. In this Circuit, the following factors are relevant to determining whether
the first prong of the inquiry has been satisfied, alone 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.
Id. at 728 (citing Logan v. Denny’s, Inc., 259 F.3d 558, 569 (6th Cir. 2001)).
Considering these factors, Plaintiff’s allegations fail to show that Defendants
created “intolerable working conditions;” they do not carry the gravity required to
create a jury case of constructive discharge. Despite obvious friction between
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Plaintiff and at least one of her managers, Plaintiff’s own managerial title and pay
apparently remained the same. (See Dkt. 21, Ex. 2; Dkt. 21, Ex. 6; Dkt. 18, Ex. E at
¶¶ 7-9.) Plaintiff does not assert that her actual job responsibilities were reduced,
that she was reassigned to work under a younger supervisor or to do degrading
work, or that she was offered any less attractive terms for continued employment.
(See Dkt. 1; Dkt. 21, Ex. 2.) She alleges being given fewer hours.
Plaintiff’s claim unsuccessfully rests on the sixth factor (“badgering,
harassment, or humiliation by the employer calculated to encourage the employee’s
resignation”). But Plaintiff has not made any factual allegations that her workplace
was characterized by badgering, harassment, or humiliation. Plaintiff alleges,
without much evidence or specificity, that one particular general manager was
“verbally abusive and harassing” after Plaintiff complained to the district manager
about being under-scheduled (Dkt. 21 at 8-9.) It is not clear what specific incidents
Plaintiff considers to be examples of this behavior. Plaintiff alleges generally that
her general manager gossiped to other employees about Plaintiff’s husband’s
medical condition, sent an unspecific number of “abusive and sexually graphic
texts,” threatened to write Plaintiff up, and did not call Plaintiff to fill in shifts. (Id.)
However, Plaintiff does not provide much detail regarding when or how frequently
these incidents occurred, their severity, or what was said to whom. (Dkt. 21, Ex. 2
at ¶ 29.)
Plaintiff has presented evidence that her manager subjected her to
performance write-ups and criticism, but criticism in performance evaluations has
19
been held insufficient in cases of constructive discharge. E.g., Keller v. Allstate Ins.
Co., 146 F.App’x 764, 766 (6th Cir. 2005) (negative performance reviews do not
constitute objectively intolerable conditions, even if unfair). Furthermore, “a feeling
of being unfairly criticized, or difficult or unpleasant working conditions are not so
intolerable as to compel a reasonable person to resign.” Id. (quoting Smith v.
Henderson, 376 F.3d 529, 534 (6th Cir.2004)).
Ultimately, Plaintiff has not presented sufficient evidence to show that
Defendants deliberately created conditions so intolerable that were intended to force
Plaintiff to quit. The test for constructive discharge “sets a high bar,” as the law
generally expects employees to remain on the job while pursuing relief from
harassment. McKelvey v. Sec’y of U.S. Army, 450 F. App’x 532, 535 (6th Cir. 2011).
Although Plaintiff may have suffered retaliation, in a case of constructive discharge
because of discriminatory harassment, this Circuit requires evidence of an
environment even more egregious than the high standard for showing a hostile
work environment. E.g., Laster, 746 F.3d at 728 (6th Cir. 2014); Moore v. KUKA
Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999). Plaintiff has not
met this high bar.
ii. Under the ELCRA
Plaintiff also asserts a religious accommodation claim under the ELCRA.
(Dkt. 1 at ¶ 43). Unlike Title VII, “the ELCRA does not include an affirmative duty
to accommodate an employee’s religious beliefs.” Ureche v. Home Depot U.S.A., Inc.,
No. 06-11017, 2006 WL 3825070 at *4 (E.D. Mich. Dec. 26, 2006). Therefore,
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Plaintiff’s religious accommodation claim under the ELCRA fails as a matter of law
and Defendants’ motion for summary judgment on this claim must be granted.
Because Plaintiff has failed to make out a prima facie case, there is no need
to consider whether Defendants’ accommodation was reasonable or the cost of
accommodation was de minimus. Defendants’ motion for summary judgment as to
Plaintiff’s religious accommodation claims under Title VII and the ELCRA is
granted.
D. Retaliation Claims under Title VII and the ELCRA
In Count IV, Plaintiff alleges that Defendants violated Title VII by retaliating
against her for complaining internally about pay shortages, under scheduling and
harassment, and externally to the EEOC about religious discrimination and denial
of a religious accommodation. Plaintiff makes the same claims in Count V under the
ELCRA.
Again, the ELCRA analysis is identical to the analysis under Title VII. Wasek
v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir. 2012). Title VII prohibits
discriminating against an employee who has engaged in conduct protected under
the Act. See 42 U.S.C. § 2000e–3(a). Such protected conduct includes the filing of
formal discrimination charges with the EEOC as well as complaints to management
and other informal protests of discriminatory practices. See Hill v. Air Tran
Airways, 416 Fed.Appx. 494, 498 (6th Cir.2011); Shepard v. Uniboring, 72
Fed.Appx. 333, 336 (6th Cir.2003). Thus, both Plaintiff’s internal complaints to her
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general and district managers and the charges she filed with the EEOC are
protected activities.
Like a Title VII discrimination claim, a Title VII retaliation claim can be
established by offering direct evidence of retaliation or circumstantial evidence that
would support an inference of retaliation. Laster, 746 F.3d at 730 (citing Imwalle v.
Reliance Medical Products, Inc., 515 F.3d 531, 538 (6th Cir.2008)). In this case,
Plaintiff has offered circumstantial evidence. Consequently, Plaintiff’s retaliation
claim will be analyzed under the aforementioned burden-shifting framework of
McDonnell Douglas.
To establish a prima facie case of retaliation under Title VII, Plaintiff must
demonstrate that: (1) she engaged in activity protected by Title VII; (2) her exercise
of such protected activity was known by Defendants; (3) thereafter, Defendants took
an action that was “materially adverse” to 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)). Title VII
retaliation claims “must be proved according to traditional principles of but-for
causation,” which “requires proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the employer.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
The “materially adverse action” element of a Title VII retaliation claim is “less
onerous” to establish than the “adverse employment action” element of a Title VII
discrimination claim. Laster, 746 F.3d at 731. For an action to be materially
22
adverse, Plaintiff need only show “that a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006)). Therefore, the fact that Plaintiff cannot meet the standard for
constructive discharge is not necessarily dispositive of Plaintiff’s Title VII
retaliation claim “where Plaintiff has provided evidence of other adverse actions
which raise a genuine issue of fact as to whether or not they satisfy this standard.”
Laster, 746 F.3d at 719.
Plaintiff has alleged, and provided adequate evidence to establish, an issue of
material fact regarding the alleged retaliation. The schedules both parties
submitted show, as Plaintiff claims, that her general manager cut her hours
immediately after Plaintiff reiterated her request for Sundays and nights off and
complained to the district manager, and again immediately after her first EEOC
complaint was mailed to Defendants. (Dkt. 21, Ex. 3.) The work schedules show that
through March 21, 2011, Plaintiff worked approximately 33 hours per week on
average. (Id.) On March 14, 2011, Plaintiff claims that her general manager asked
her to work one Sunday a month and Plaintiff refused, restating her request to have
Sundays and nights off. (Dkt. 21 at 4.) On March 29, 2011, Plaintiff complained to
the district manager about her general manager’s “scheduling abuse” and
performance write-ups. (Dkt. 21 at 6.) Beginning the week of March 28, 2011,
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Plaintiff’s hours were drastically reduced to an average of approximately 20 per
week. (Dkt. 21, Ex. 3.)
Plaintiff filed her first EEOC complaint on July 12, 2011. (Dkt. 21 at 6-8.)
Plaintiff complained to the EEOC about being scheduled to work on Sundays and
closing shifts in conflict with her request. (Dkt. 21, Ex. 7 at 2.) Although the record
does not clarify precisely when Defendants became aware that Plaintiff had
complained to the EEOC, it is not unreasonable from the evidence in the record to
draw an inference that Defendants knew prior to receiving the complaint itself
because, beginning the following week on July 18, 2011, the general manager
further reduced Plaintiff’s weekly hours from an average of approximately 20 to
about 16. (Dkt. 21, Ex. 3.)
Defendants argue that Plaintiff’s hours were reduced because she voluntarily
limited her availability on March 14, 2011. (Dkt. 18 at 3-4.) That may explain the
initial reduction in Plaintiff’s hours, but not the second. This reason also does not
explain why, with the EEOC mediation pending in January 2012, the general
manager suddenly boosted Plaintiff to a 27-hour work week beginning on December
5, 2011. (Dkt. 21 at 9; Dkt. 21, Ex. 3.)
In this Circuit, “[w]here an adverse employment action occurs very close in time
after an employer learns of a protected activity, such temporal proximity between
the events is significant enough to constitute evidence of a causal connection for the
purposes of satisfying a prima facie case of retaliation.” Montell v. Diversified
Clinical Servs., Inc., 757 F.3d 497, 505 (6th Cir. 2014) (quoting Mickey v. Zeidler
24
Tool & Die Co., 516 F.3d 516, 525 (6th Cir.2008)). This is because “it is nearly
impossible to come up with other evidence that the adverse employment action was
retaliatory where the adverse action comes directly on the heels of the protected
activity.” Montell, 757 F.3d at 506.
Plaintiff, however, is not relying solely on the temporal link between her
complaints and the reduction of her weekly hours. Plaintiff also alleges that the
general manager subjected her to heightened scrutiny and verbal abuse after she
complained. (Dkt. 21 at 8.) Defendants do not offer any evidence to refute Plaintiff’s
assertions. In any event, the temporal proximity evident in this case is sufficiently
close to satisfy causation for the purpose of establishing a prima facie case.
Given the temporal proximity between the Plaintiff’s complaints and the
reduction in hours, a reasonable jury could infer that Plaintiff suffered materially
adverse and retaliatory actions, even if they do not meet the high standard required
for constructive discharge. In addition, Defendants have not produced evidence of a
non-retaliatory reason explaining Plaintiff’s second reduction in hours or refuting
Plaintiff’s assertions of increased abuse and harassment. Therefore, summary
judgment is denied as to Plaintiff’s claims of retaliation under Title VII and the
ELCRA.
Plaintiff has raised a genuine issue of material fact as to whether or not
Defendants retaliated against her in violation of Title VII and the ELCRA.
Therefore, Defendants motion as to Plaintiff’s retaliation claims, Counts IV and V,
are denied.
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III.
CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART. Specifically, Defendants’ motion is
GRANTED as to Counts II and III because Plaintiff has submitted no evidence in
support of her claim that Defendants’ employment decisions were motivated or
influenced by Plaintiff’s religion. As to Counts I, IV, and V, Defendants’ motion is
DENIED because there are genuine issues of material fact.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: September 29, 2014
Certificate of Service
I hereby certify that this Order was electronically submitted on September 29, 2014,
using the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager
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