Culver v. Comcast of MO of Delaware, Inc.
Filing
52
OPINION; Order and Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREG A. CULVER,
Plaintiff,
Case No. 1:13-cv-739
v.
HON. JANET T. NEFF
COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC,
Defendant.
____________________________________/
OPINION
Pending before the Court is Defendant Comcast’s Motion for Summary Judgment (Dkt 45)
in this age discrimination case stemming from the termination of Plaintiff’s employment on the
ground that he violated Defendant’s conduct policy prohibiting sexual harassment in the workplace.
Plaintiff has filed a Response opposing the motion (Dkt 50), and Defendant has filed a Reply (Dkt
49). For the reasons that follow, the Court grants Defendant’s motion.
I. Facts
The parties have stipulated to the facts as follows for purposes of the motion for summary
judgment (Dkt 45):
1. Plaintiff worked for Comcast (and its predecessors) from March 22, 1982 to November
9, 2012. (Ex. 1, Culver Dep., pp. 10-11.) He was last employed as a Technical Operations Manager,
overseeing the Richland and Muskegon facilities. (Ex. 1, Culver Dep., pp. 84-87; Ex. 2, Anderson
Dep., p. 46.) He generally spent three days a week working out of the Richland facility and two
working out of Muskegon. (Ex. 1, Culver Dep., pp. 84-90.)
2. Plaintiff was the top manager present on a day-to-day basis in the Richland facility (no
other manager was located in Richland) where he oversaw three supervisors and about 30
Technicians. (Ex. 1, Culver Dep., pp. 84-90; Ex. 2, Anderson Dep., pp. 61, 68, 137.)
3. Comcast maintained policies prohibiting discrimination and harassment in the workplace,
which included making sexually suggestive jokes or derogatory sexual comments. (Ex. 1, Culver
Dep., pp. 95-96; Ex. 3, Handbook; Ex. 4, Code of Conduct.)
Under Comcast’s policies,
management level employees had additional responsibilities, including, setting the right example
and creating an open and safe working environment. (Ex. 1, Culver Dep., pp. 98-99; Ex. 4, Code
of
Conduct,
p.
7.)
Plaintiff
was
harassment/anti-discrimination policies.
trained
in
accordance
with
Comcast’s
anti-
(Ex. 1, Culver Dep., pp. 96-98; Ex. 5, Plaintiff’s
Anti-Harassment Training.)
4. Comcast terminated Plaintiff’s employment on November 9, 2012. (Ex. 1, Culver Dep.,
p. 78.) Comcast initially promoted Brian Armstrong to Plaintiff’s vacated position. (Ex. 1, Culver
Dep., pp. 173; Ex. 2, Anderson Dep., pp. 134-135.) Soon thereafter, Comcast reorganized and
Francis McNamara took over responsibility for the Richland office. (Ex. 2, Anderson Dep., pp.
134-135; Ex. 7, McNamara, pp. 15-17.)
5. At the time of his discharge, Plaintiff was 50 years old (date of birth: 12/9/1961),
Armstrong was 34 (2/19/1978), and McNamara was 43 (7/20/1969). (Ex. 1, Culver Dep., p. 9; Ex.
6, Armstrong I-9; Ex. 7, McNamara Dep., p. 5.)
II. Summary Judgment Standard
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The
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court must consider the evidence and all reasonable inferences in favor of the nonmoving party.
Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013); U.S. S.E.C. v. Sierra Brokerage Servs., Inc.,
712 F.3d 321, 327 (6th Cir. 2013) (citation omitted).
The moving party has the initial burden of showing the absence of a genuine issue of
material fact. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 200 (6th Cir. 2010). The burden then
“shifts to the nonmoving party, who must present some ‘specific facts showing that there is a
genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“There is no genuine issue for trial where the record ‘taken as a whole could not lead a rational trier
of fact to find for the non-moving party.’” Burgess, 735 F.3d at 471 (quoting Matsushita Elec.
Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “The ultimate inquiry 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.’” Sierra Brokerage Servs., 712 F.3d at 327
(quoting Anderson, 477 U.S. at 251-52).
III. Discussion
Plaintiff alleges age discrimination under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621 et seq., and Michigan’s Elliot-Larsen Civil Rights Act (ELCRA), MICH.
COMP. LAWS § 37.2101 et seq. The analytic framework and evidentiary burdens for Plaintiff’s
claims are the same under either statute for purposes of this motion. See Geiger v. Tower
Automotive, 579 F.3d 614, 621-22, 626 (6th Cir. 2009); Hughes v. Gen. Motors Corp., 212 F. App’x
497, 501 (6th Cir. 2007); Sniecinski v. Blue Cross & Blue Shield of Mich., 666 N.W.2d 186, 193
(Mich. 2003).
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A. McDonnell Douglas Framework
Plaintiff alleges a disparate treatment theory of discrimination based on circumstantial
evidence, i.e., that he was disparately disciplined with termination for alleged sexual
comments/innuendo/harassment, since another female employee engaged in similar conduct and was
not discharged; he was replaced by a younger employee; and Defendant has recently fired and
replaced older, longer tenured employees with substantially younger employees (Compl., Dkt 3 ¶¶
1-14). Plaintiff’s claim is thus subject to the familiar burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, a plaintiff must first
establish the four elements of a prima facie case to raise an inference of age discrimination, by
showing that: (1) he was a member of a protected class, i.e., over 40; (2) he was subjected to an
adverse employment action, e.g., discharged; (3) he was qualified for the position held; and (4) he
was replaced by someone outside of the protected class, i.e., that he was replaced by, or treated less
favorably than, someone substantially younger.1 Schoonmaker v. Spartan Graphics Leasing, LLC,
595 F.3d 261, 264 (6th Cir. 2010); Geiger, 579 F.3d at 622.
“Once a plaintiff satisfies [the] prima facie burden, the burden of production shifts to the
employer to articulate a legitimate nondiscriminatory reason for the adverse employment action.”
Schoonmaker, 595 F.3d at 264 (citing Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir.
2008)). If the employer meets this burden, then the burden of production shifts back to the plaintiff
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The Supreme Court has noted that “the precise requirements of the prima facie case can vary
with the context and were ‘never intended to be rigid, mechanized, or ritualistic.’” Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 506-07 (2002) (citation omitted). The stated elements are modified to
accord with the circumstances of Plaintiff’s claims.
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to show that the employer’s explanation was a mere pretext for intentional age discrimination. Id.
The burden of persuasion, however, remains on the plaintiff at all times to demonstrate “‘that age
was the ‘but-for’ cause of [the] employer’s adverse action.’” Geiger, 579 F.3d at 620 (quoting
Gross v. FBL Fin. Services, Inc., ___ U.S. ___; 129 S. Ct. 2343, 2351 n.4 (2009)).
Finally, “[a] plaintiff can refute the legitimate, nondiscriminatory reason that an employer
offers to justify an adverse employment action ‘by showing that the proffered reason (1) has no basis
in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to
warrant the challenged conduct.’” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th
Cir. 2003) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)). “‘The ultimate
question in every employment discrimination case involving a claim of disparate treatment is
whether the plaintiff was the victim of intentional discrimination.’” Geiger, 579 F.3d at 620
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)).
B. Analysis
Defendant moves for dismissal on the ground that Plaintiff has not shown any “similarly
situated” employee who was treated differently; therefore, his age discrimination claim fails.
Defendant argues that the female employee on whom Plaintiff primarily bases his case, Kate Staib,
is not similarly situated because she is an employee two levels of supervision below Plaintiff (Def’s.
Mot., Dkt 45 at 2). And although Staib may have engaged in sexual banter with Plaintiff, “she was
not, like him, a manager charged with setting the tone of the workplace and implementing Comcast’s
policies” (id.); thus, under settled Sixth Circuit precedent, she is not “similarly situated.” See Pierce
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v. Commonwealth Life Ins. Co., 40 F.3d 796, 803 (6th Cir. 1994)2 (“The standard for determining
an employer’s liability in co-worker discrimination cases is markedly different from the standard
applied in supervisor harassment cases.”).
1. Prima Facie Case
For purposes of this motion, Defendant has assumed that Plaintiff can establish a prima facie
case (Def’s. Mot. Br., Dkt 48 at 8 n.2). Accordingly, the Court will likewise assume a prima facie
case for purposes of analysis.3
2. Pretext
Defendant asserts that Plaintiff was discharged because he created and fostered a sexually
hostile work environment (Def’s. Mot, Dkt 45 at 2). It is undisputed that Plaintiff’s employment
was suspended after an employee complained of Plaintiff’s inappropriate sexual behavior, and that
Plaintiff was subsequently discharged following an investigation by Defendant’s senior managers,
who determined that Plaintiff had engaged in inappropriate sexual comments and behavior in
violation of Defendant’s Conduct Policy, including the Harassment Policy.
The complaint against Plaintiff was received in conjunction with a separate investigation of
racial slurs by several employees, headed up by Human Resources Manager, Mandy McIntyre.
Because Plaintiff was a top manager, McIntyre referred the investigation of the complaint about
2
Abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., 530 U.S. 148 (2000),
as recognized in Carter v. Toyota Tsusho Am., Inc., 529 F. App’x 601, 608-10 (6th Cir. 2013).
3
Although the parties apparently advance their arguments under the pretext stage of the
McDonnell Douglas framework, their application of the legal principles to the circumstances
presented is less straightforward. Regardless, the result is the same since the essential dispute is
whether Plaintiff’s discharge was based on the impermissible consideration of age or on permissible
grounds of conduct policy violations.
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Plaintiff to her superiors: Scott Anderson, Senior Director of Human Resources and Sandra
Stankov, Senior Manager of Human Resources. Following the investigation by Anderson and
Stankov, a Request For Termination of Plaintiff’s employment was issued for serious policy
violations, stating:
A complaint was received regarding inappropriate sexual joking and innuendo
exhibited by Greg Culver. Seven employees were interviewed in relation to the
complaint as part of the investigation. Over the course of the investigation it was
substantiated that Greg violated the companies [sic] anti-harassment policies by
initiating and allowing inappropriate sexual jokes to occur not only in team meetings
but throughout the Richland office as a matter of standard operation. Examples
include, but are not limited to:
– Making sexually suggestive jokes, derogartoy [sic] or sexually degrating [sic]
comments, or comments about indivual [sic] body or appearance
– Making epithets, slurs, ridiculing comments or statements that reflect negative
stereotypes.
– Mocking or telling jokes based on protected characteristics
– Being rude, discourteous, or acting unprofessionaly [sic] in any way towards
customers, potential customers, co-workers, contractors, vendors, etc.
(Request For Termination, Jt. Ex 8). The Request For Termination noted that Plaintiff denied the
allegations, but he did not offer any other sources to refute the allegations.
Plaintiff does not dispute that he engaged in sexual innuendo and behavior in the workplace,
but he nonetheless argues that he has produced evidence of pretext by showing that Defendant’s
asserted reason for terminating his employment, “for violating [Defendant’s] anti-harassment policy
by creating a sexually abusive work environment,” was false (Pl’s. Resp., Dkt 50 at 15). Plaintiff
asserts:
What happened is an investigation ran amok, with the defendant
mischaracterizing what was a friendly, enjoyable working environment as a sexually
abusive one. At best for the defendant, Mr. Culver engaged, as did consenting
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others, in mild, inoffensive, sexual innuendo not involving sexual advances or abuse,
not much more than one might hear on late night television.
(Id. at 15-16).
Plaintiff contends that no one who worked under Plaintiff complained about him; and no one,
much less any woman, interviewed in Defendant’s investigation indicated that he or she was
offended by Plaintiff’s comments or conduct (Pl’s. Resp., Dkt 50 at 16). Plaintiff argues that
Defendant could not have concluded that he violated Comcast’s conduct or anti-harassment policies
because the policies do not prohibit inoffensive jokes or innuendo (id.). Plaintiff asserts that
Defendant relied, in part, on false information as an alleged basis for discharging Plaintiff (id. at 22).
Moreover, all of the alleged evidence Defendant gathered, whether false or not, was insufficient to
justify termination, as it did not constitute harassment and no one was offended by it (id.). Plaintiff
asserts that “[t]erminating someone for alleged mild, inoffensive sexual innuendo is not sufficient
grounds for terminating an employee, and it is a pretext in this case for age discrimination” (id. at
22-23).
Plaintiff’s arguments are unavailing. Plaintiff falls far short of showing on the record
presented that Defendant’s reason for his employment termination was pretext.
First, as Defendant contends, Plaintiff has failed to establish that he was treated less
favorably than “similarly situated” non-protected employees under Mitchell v. Toledo Hospital, 964
F.2d 577, 582-83 (6th Cir. 1992). See Cameron v. Ohio, 344 F. App’x 115, 118-19 (6th Cir. 2009).
As Defendant points out, this comparison fails as to Staib because she was a non-supervisor, and
therefore is not “similarly situated” as a matter of law. See Pierce, 40 F.3d at 803.
Plaintiff was the top manager present on a day-to-day basis in Comcast’s Richland facility
(no other manager was located in Richland) where he oversaw three supervisors and about 30
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Technicians (Stip’d. Facts ¶ 2). “In supervisor sexual harassment cases, an individual who is acting
as an employer’s ‘agent’ is deemed the alter ego of the employer and the employer is liable for his
unlawful employment practices without regard to whether the employer actually knew (or should
have known) of the individual’s conduct.” Pierce, 40 F.3d at 803. “The standard for determining
an employer’s liability in co-worker discrimination cases is markedly different from the standard
applied in supervisor harassment cases,” in that an employer is generally held liable only if it knew
or should have known about it and failed to take remedial action. Id. at 803-04. Accordingly, any
claim by Plaintiff that Defendant’s failure to discharge Staib for similar sexual comments or conduct
shows pretext, fails. The two employees were not similarly situated and such evidence does not
show that Defendant’s proffered reason for terminating Plaintiff “‘(1) has no basis in fact, (2) did
not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the
challenged conduct.’” Wexler, 317 F.3d at 576 (citation omitted).
As Defendant contends and the record establishes, as a manager, Plaintiff was responsible
for maintaining a safe and healthy workplace; setting the right example for ethical behavior; and
creating an open reporting environment, free from harassment (Stip’d. Facts ¶ 3; Def’s. SMF,4 Dkt
47 ¶ 7; Jt. Ex. 4, Def’s. Code of Conduct). Defendant’s policies prohibited discrimination and
harassment in the workplace, which includes making sexually suggestive jokes or derogatory sexual
comments (Stip’d. Facts ¶ 3; Jt. Ex. 3, Employee Handbook). Plaintiff was trained in Comcast’s
anti-discrimination policies, and as a manager, was responsible for ensuring that Comcast’s policies
prohibiting sexual harassment were enforced (Def’s. SMF ¶¶ 5-11 and record citations therein).
4
Defendant provides a Statement of Material Facts (SMF) with citations to the record
evidence (Dkt 47).
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Despite Plaintiff’s protestations to his discharge for sexual innuendo and comments in the
workplace, and his attempt to minimize the offensive nature of his conduct, the record amply
supports Defendant’s grounds for termination of his employment for serious policy violations. The
Human Resources investigation documented that Plaintiff engaged in sexual language and actions
in the workplace, which Defendant determined was inappropriate and in violation of its Conduct
Policy and Harassment Policy. Numerous employee-witnesses reported to Anderson and Stankov
that Plaintiff fostered a sexual work environment and frequently engaged in sexual behavior (Def’s.
SMF ¶ 19 and record citations therein). For example, two supervisors and two Technician Operators
reported to Anderson and Stankov that Plaintiff constantly made fun of homosexuals, including
calling Saugatuck, a city allegedly known for its large homosexual population, “Sausage-tuck” (id.
¶ 20). All three supervisors and two Technician Operators reported to Anderson and Stankov that
Plaintiff and an openly lesbian employee constantly made sexual jokes, such as “she doesn’t like the
bat” (id. ¶ 21). Two Technician Operators reported to Anderson and Stankov that Plaintiff asked
employees “would you like to have my hamster duct taped to your butt?” (id. ¶ 22). All three
supervisors and two Technician Operators reported to Anderson and Stankov that Plaintiff walked
around with a handful of nuts asking employees, “Who wants my salty nuts in your mouth?” (id.
¶ 23). One newly hired Technician Operator told Anderson and Stankov that Plaintiff asked him
if he liked “golden showers,” i.e., being urinated on (id. ¶ 26).
Based upon the results of the investigation and an interview with Plaintiff concerning the
evidence, the Senior Director of Human Resources, Scott Anderson, and Larry Williamson, Vice
President of Technician Operators and Plaintiff’s direct supervisor, presented the evidence (and
Plaintiff’s denials) to Comcast’s senior management and human resource professionals, including
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Ardella Darst, Human Resource Vice President; Nick Wainwright, Senior Vice President of
Engineering; Steven Gillenwater, Human Resource Senior Vice President; and Douglas Pelletiere,
Human Resource Vice President (Def’s. SMF ¶ 27; ¶ 35, citing Jt. Ex. 2, Anderson Dep. at 70-75).
The group made a collaborative decision to terminate Plaintiff’s employment based on the evidence
(Def’s. SMF ¶¶ 36-38 and record citations therein).
Based on these circumstances and the record evidence, Plaintiff has failed to show that
Comcast’s reason for terminating his employment was pretextual. Plaintiff’s citation to instances
of other, younger employees (such as Armstrong, Plaintiff’s replacement), who purportedly received
discipline other than termination for improper or prohibited conduct, does not change this result
because Plaintiff has failed to show that such employees were “similarly situated” or that their
conduct was of “comparable seriousness.” See Bobo v. United Parcel Service, Inc., 665 F.3d 741,
751 (6th Cir. 2012) (a plaintiff must show that he and his proposed comparators were similar in all
relevant respects and that he and his proposed comparators engaged in acts of comparable
seriousness); see also Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 917 (6th
Cir. 2013).
3. Honest Belief Rule
Plaintiff’s denials do not further his arguments concerning pretext. “Courts have repeatedly
held that the plaintiff’s denial of the defendant’s articulated legitimate reason without producing
substantiation for the denial is insufficient for a [] discrimination claim to withstand a motion for
summary judgment.” Mitchell, 964 F.2d at 585. As Defendant points out, its disciplinary decision
is entitled to deference under the “honest belief” rule (Def’s. Mot. Br., Dkt 48 at 12). An employer’s
decision is entitled to deference if the employer made “a reasonably informed and considered
11
decision before taking an adverse employment action.” Seeger v. Cincinnati Bell Tel. Co., LLC, 681
F.3d 274, 285 (6th Cir. 2012); see also Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106,
1117 (6th Cir. 2001) (“An employer has an honest belief in its reason for discharging an employee
where the employer reasonably relied ‘on the particularized facts that were before it at the time the
decision was made.’” (citation omitted)). The record fully supports Defendant’s honest belief in the
nondiscriminatory reason for terminating Plaintiff’s employment. See Lloyd v. St. Joseph Mercy
Oakland, 766 F.3d 580, 591 (6th Cir. 2014) (witness statements corroborated the substance of the
discharge notice and were sufficient to establish employer’s honest belief in nondiscriminatory
reason for termination).
To demonstrate pretext, a “plaintiff must produce sufficient evidence from which the jury
could ‘reasonably reject [the defendant’s] explanation’ and infer that the defendant[] ‘intentionally
discriminated’ against him.” Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir. 2001). A
plaintiff must show “more than a dispute over the facts upon which the discharge was based.” Id.
at 493-94. Plaintiff’s denials do not create an issue of fact.
IV. Conclusion
“In a disparate treatment case, it is the plaintiff’s burden to prove that an employer
intentionally ‘treats some people less favorably than others because of their race, color, religion, sex,
or national origin.’” Stotts v. Memphis Fire Dept., 858 F.2d 289, 294 (6th Cir. 1988) (quoting Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). Plaintiff has failed to meet this
burden.
The Court finds no genuine issues of material fact concerning Plaintiff’s claims of age
discrimination. Plaintiff has presented no persuasive evidence that Defendant’s proffered reason
12
for terminating his employment was pretextual or that his termination was instead based on age
animus. Defendant’s motion for summary judgment is therefore granted.
An Order will be entered consistent with this Opinion.
Dated: May ___, 2015
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/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
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