Brown v. Michigan State University Board of Trustees
OPINION; order and judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:15-cv-1280
HON. JANET T. NEFF
MICHIGAN STATE UNIVERSITY BOARD
Plaintiff Catryina Brown brings this action against Defendant Michigan State University
Board of Trustees (“MSU”), claiming race and sex discrimination under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the Civil Rights Act of 1991 (“Title VII”),
and under the Elliot-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2101 et seq.
Before the Court is Defendant’s motion for summary judgment. (ECF No. 21.) Plaintiff has filed a
response to the motion, and Defendant has filed a reply. For the reasons that follow, Defendant’s
motion will be granted.
Rule 56 of the Federal Rules of Civil Procedure requires the Court to grant summary
judgment “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). In evaluating a motion for
summary judgment the Court must look beyond the pleadings and assess the proof to determine
whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). “[T]he district court must construe the evidence and draw all reasonable
inferences in favor of the nonmoving party.” Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439,
443 (6th Cir. 2009). When such a motion is filed by the defendant, the “plaintiff must do more than
rely merely on the allegations of her pleadings or identify a ‘metaphysical doubt’ or hypothetical
‘plausibility’ based on a lack of evidence; [a plaintiff] is obliged to come forward with ‘specific
facts,’ based on ‘discovery and disclosure materials on file, and any affidavits[.]’” Chappell v. City
of Cleveland, 585 F.3d 901, 912 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56(c)); Matsushita, 475
U.S. at 586-87). The proper inquiry is whether the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986); see generally Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).
Plaintiff attended Michigan State University from 2003 to 2010, during which time she was
a student custodian for the university’s Infrastructure, Planning and Facilities (“IPF”) unit. In August
2011, Defendant hired Plaintiff as a non-student, on-call custodial employee. In January 2012,
Plaintiff became a Temporary Custodian I, which is a three-month position that is renewable for up
to nine months. Like other temporary employees, a Temporary Custodian is evaluated at the end of
every three months. At the end of the nine-month period, the temporary employee is off work for
a week while they are reevaluated. (Fox-Elster Dep. 11, ECF No. 22-6.) Defendant then decides
whether to continue the employment for another nine-months as a temporary employee. If the
employee’s reviews are satisfactory, the temporary employee can apply for a permanent position,
if one is available. (Id. at 12-13.)
The Custodian I position requires a “casual knowledge of cleaning methods, techniques and
equipment.” (ECF No. 22-7.) The employee is required to perform “cleaning and housekeeping
activities” in an assigned area. (Id.) During Plaintiff’s first year of non-student employment, from
August 2011 to October 2012, Plaintiff was assigned to work in buildings that followed the “OS1”
cleaning system. According to Brandon Baswell, the Custodial Services Manager for the IPF unit,
the OS1 system uses a “job card protocol” that “is very specific and detailed in terms of cleaning
chemicals, estimated time for each job, and workflow.” (Baswell Aff. ¶ 3, ECF No. 21-3.) It is
“designed to ensure consistency and equity in work flow[.]” (Id. at ¶ 6.) Because the university was
in the process of adopting the OS1 system in 2012, not all of its buildings used it. After October
2012, Plaintiff worked in buildings that did not use the OS1 cleaning system.
A performance evaluation of Plaintiff from August 2012 shows that she fell below
expectations in “quantity of work,” and “attitude and cooperation.” (ECF No. 21-8.) Plaintiff’s
supervisor from that time period told Baswell that the results of this evaluation were due to
Plaintiff’s failure to follow the OS1 process in a timely manner. (Baswell Dep. 15, ECF No. 21-7.)
In contrast, Plaintiff’s performance evaluations from October 2012, February 2013, May 2013, and
February 2014, show that she met or exceeded expectations in all categories. (ECF Nos. 22-8, 22-9,
22-10, 22-11.) However, most of these evaluations were based on Plaintiff’s performance in
buildings that did not use the OS1 system.
In July 2014, Plaintiff obtained a permanent position as a Custodian I, assigned to work in
the Administration Building, which uses the OS1 cleaning system. Per Defendant’s contract with
the union, Plaintiff’s position was subject to a probationary period of 6 months or 1040 hours. At
the beginning of this period, Plaintiff complained about the OS1 system and the job cards. (Pl.’s
Dep. 83, ECF No. 21-1.) She determined that other employees “figured out a way that made more
sense than going by the job cards[.]” (Id. at 84.) For instance, she used a cleaning agent that was
different from the one approved by the job card, because that is what another employee told her to
do. (Id. at 78.) She complained to her supervisor that others were not following the job cards. (Id.
Several months later, in September 2014, the only other full-time custodial employee in the
Administrative Building became injured, so Plaintiff took over as the building head. “The building
head is not a supervisor, but is in a position of authority in that they provide oversight with respect
to the daily workflow and answer questions for other staff.” (Ex. 14 to Pl.’s Resp., ECF No. 22-15,
PageID.469.) At the time, Sean Fox-Elster was a Service Manager for Defendant; one of his
responsibilities was to determine how much staffing was needed for custodial work at various
buildings on campus. (Fox-Elster Dep. 14, ECF No. 21-5.) He was also responsible for making any
necessary changes to the OS1 job cards. (Id.)
In December 2014, Fox-Elster went to the Administration Building to meet with Plaintiff
because her supervisor notified him of some concerns that she had raised about the job cards. (Id.
at 22, 25.) At the meeting, Plaintiff told Fox-Elster that another employee had complained that there
was too much work assigned on the job cards. (Pl.’s Dep. 90, ECF No. 21-1.) Plaintiff believed that
some of the cards were “wrong” and “confusing.” (Id. at 91.) She told Fox-Elster that she had been
trained to use different cards that were created by another employee, and Plaintiff followed those
other cards. (Id. at 91, 93, 95.) She tried to persuade Fox-Elster that his job cards were insufficient.
(Id. at 95.) But he advised her to follow his cards before they would discuss making changes to
them. (Fox-Elster Dep. 19, 23; Pl.’s Dep. 94.) On one occasion, after Plaintiff argued with
management and custodial staff about the job cards, she left work in the middle of her shift. (Pl.’s
Plaintiff’s probationary period was set to expire in January 2015. On January 28, 2015,
Defendant offered her an extension of that period. Plaintiff indicated that she was not interested in
extending her probation. (Pl.’s Dep. 96.) She was told that the alternative would be termination;
nevertheless, she refused to extend her probation. (Id.) Defendant subsequently terminated her,
effective February 3, 2015.
Plaintiff claims that Defendant terminated her on account of her race and gender. Under Title
VII, it is unlawful for an employer to discharge an employee because of the employee’s race or sex.
42 U.S.C. § 2000e-2(a)(1). The ELCRA prohibits similar conduct. Mich. Comp. Laws §
37.2202(1)(a). Plaintiff may prove discrimination by direct evidence, or by indirect evidence under
the burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973) and Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). See Mitchell v. Toledo Hosp., 964 F.2d
577, 582 (6th Cir. 1992) (noting that the McDonnell Douglas/Burdine framework applies to claims
under Title VII); see also Hazle v. Ford Motor Co., 628 N.W.2d 515, 520-21 (Mich. 2001) (applying
the McDonnell Douglas/Burdine framework to a claim under the ELCRA).
1. Direct Evidence
Direct evidence of discrimination is “that evidence which, if believed, requires the
conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.”
Jacklyn v. Schering–Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999).
Generally, “[d]irect evidence of discrimination occurs when either the decision-maker or an
employee who influenced the decision-maker made discriminatory comments related to the
employment action in question.” Siemer v. Comet N. Am., 467 F. Supp. 2d 781, 787 (S.D. Ohio
2006). Plaintiff has not offered direct evidence of discrimination. Consequently, she must establish
a prima facie case under the burden-shifting framework of McDonnell Douglas.
2. Indirect Evidence
To establish a prima facie case of discrimination using indirect evidence, Plaintiff must
produce evidence showing that “(1) [she] is a member of a protected class; (2) [she] was qualified
for [her] job; (3) [she] suffered an adverse employment decision; and (4) [she] was replaced by a
person outside the protected class or treated differently than similarly situated non-protected
employees.” White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008); see also Lytle
v. Malady, 579 N.W.2d 906, 914 & n.19 (Mich. 1998) (describing the fourth part of the prima facie
case under the ELCRA as requiring the plaintiff to show that she “was discharged under
circumstances that give rise to an inference of unlawful discrimination,” but explaining that “[t]his
four part test is an adaptation of the United States Supreme Court’s McDonnell Douglas test to prove
a prima facie case of discrimination”). “Once the plaintiff establishes this prima facie case, the
burden shifts to the defendant to offer evidence of a legitimate, non-discriminatory reason for the
adverse employment action.” Id. If the defendant meets this burden, “the burden shifts back to the
plaintiff to show that the defendant’s proffered reason was not its true reason, but merely a pretext
for discrimination.” Id. at 391-92. “A plaintiff will usually demonstrate pretext by showing that the
employer’s stated reason for the adverse employment action either (1) has no basis in fact, (2) was
not the actual reason, or (3) is insufficient to explain the employer’s action.” Id. at 393.
(a) Member of a Protected Class
Defendant does not dispute that Plaintiff is a member of a protected class.
(b) Qualified for the Job
Defendant claims that Plaintiff was not qualified for her position because she was unable to
meet expectations when she was asked to follow the OS1 protocol. However, this argument
improperly conflates two stages of the McDonnell Douglas inquiry. Plaintiff’s poor performance
was one of Defendant’s asserted reasons for taking the action that it did, but “a court may not
consider the employer’s alleged nondiscriminatory reason for taking an adverse employment action
when analyzing the prima facie case. To do so would bypass the burden-shifting analysis and
deprive the plaintiff of the opportunity to show that the nondiscriminatory reason was in actuality
a pretext designed to mask discrimination.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564,
574 (6th Cir. 2003). Consequently, “when assessing whether a plaintiff has met her employer’s
legitimate expectations at the prima facie stage of a termination case, a court must examine
plaintiff’s evidence independent of the nondiscriminatory reason ‘produced’ by the defense as its
reason for terminating plaintiff.” Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660-61 (6th Cir.
2000). “At the prima facie stage, a court should focus on a plaintiff’s objective qualifications to
determine whether he or she is qualified for the relevant job.” Wexler, 317 F.3d at 575.
The prima facie burden of showing that a plaintiff is qualified can . . . be met by
presenting credible evidence that his or her qualifications are at least equivalent to
the minimum objective criteria required for employment in the relevant field.
Although the specific qualifications will vary depending on the job in question, the
inquiry should focus on criteria such as the plaintiff’s education, experience in the
relevant industry, and demonstrated possession of the required general skills.
Id. at 575-76.
In this case, Plaintiff’s work experience and performance evaluations show that she was
qualified to perform a job requiring “casual knowledge of cleaning methods, techniques and
equipment.” (ECF No. 22-7.) In addition, there is no genuine dispute that she was able to perform
“[f]requent lifting of up to 25 pounds” and “occasional lifting of 50 pounds.” (Id.) These were the
minimum objective qualifications for a Custodian I position. Thus, it appears that Plaintiff was
qualified for her job.
(c) Adverse Action
Defendant argues that it did not take an adverse action against Plaintiff because her
termination was the result of her decision not to accept an extension of her probation period.
According to Defendant, Plaintiff could have accepted this extension and there would have been no
material change in the conditions of her employment. The extension would have had no impact on
Plaintiff’s work assignment or her compensation and benefits.
Defendant’s argument presents a close question to which Plaintiff has not offered a response.
See Amos v. McNairy Cnty., 622 F. App’x 529, 534 n.3 (6th Cir. 2015) (noting that “placement on
a performance improvement plan and non-satisfactory work reviews, absent some loss in salary,
title, or benefits, [do] not rise to the level of a materially adverse employment action,” but that “this
Circuit has not explicitly addressed whether probation is an adverse employment action in the
context of discrimination[.]”). However, the Court need not resolve this issue because Plaintiff’s
claims fail for other reasons.
(d) Disparate Treatment
To establish her prima facie case, Plaintiff must also show that she was treated differently
from a similarly-situated employee of a different race or gender.
Employees may be considered similarly situated if a plaintiff can prove that all of the
relevant aspects of his employment situation are nearly identical to those of the
employees who he alleges were treated more favorably. [Pierce v. Commonwealth
Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)]. This means that “the individuals
with whom the plaintiff seeks to compare his treatment must have dealt with the
same supervisor, have been subject to the same standards and have engaged in the
same conduct.” Mitchell, 964 F.2d at 583. Differences in job title and
responsibilities, experience, and disciplinary history may establish that two
employees are not similarly situated.
Cambell v. Hamilton Cnty., 23 F. App’x 318, 325 (6th Cir. 2001). To satisfy this test, Plaintiff points
to Defendant’s treatment of Dan Isaacson. Isaacson was a white, male custodial employee who
worked on the same crew as Plaintiff. He had the same supervisor and was subject to the same
probationary period. Plaintiff claims that Isaacson engaged in the same conduct but was not given
any discipline. According to Plaintiff, Isaacson also failed to follow the OS1 job cards, but unlike
Plaintiff, he passed his probationary period.
Plaintiff’s contention that Isaacson did not follow the job cards is not supported by any
evidence. Plaintiff relies on an email written by Fox-Elster to Baswell, in which Fox-Elster reports
on his conversation with Plaintiff in December 2014; Fox-Elster states, “It seems the crew at
Administration has not been following the job cards the way they should.” (ECF No. 22-22.)
According to Plaintiff, this statement shows that Isaacson also failed to follow the job cards because
he was also part of the “crew” at the Administration building. However, Fox-Elster was merely
referring to the crew generally. He did not refer to Isaacson in particular. Moreover, he was
reporting what Plaintiff had told him. In her deposition, Plaintiff admitted that, as far as she was
aware, Isaacson followed the job cards. (Pl.’s Dep. 106.) Thus, Fox-Elster’s statement is not
evidence that Isaacson did not follow the OS1 job cards.
Furthermore, there is no evidence that Isaacson had disagreements with management about
the job cards or walked off the job in the middle of his shift, as Plaintiff did. (See id. at 107.) Thus,
Plaintiff and Isaacson did not engage in the same relevant conduct and were not similarly situated.
“[W]hile a discriminatory inference is usually, and perhaps most readily, generated through
evidence of unfavorable treatment of the minority plaintiff vis-à-vis similarly-situated individuals,
McDonnell Douglas and its progeny do not require this always be the case . . . .” Lindsay v. Yates,
578 F.3d 407, 417 (6th Cir. 2009). “The central inquiry in evaluating whether the plaintiff has met
[her] initial burden is whether the circumstantial evidence presented is sufficient to create an
inference [of discrimination].” Id. at 269. This initial burden “is not onerous.” Burdine, 450 U.S. at
253. “[S]o long as ‘additional evidence’ exists—beyond showing the first three elements of the
McDonnell Douglas test—that indicates discriminatory intent in ‘light of common experience,’ the
required ‘inference of discrimination’ can be made in satisfaction of the prima facie case.” Lindsay,
578 F.3d at 418. In this case, there is no additional evidence of discriminatory intent. Thus, Plaintiff
has not offered sufficient evidence to create a reasonable inference of discrimination.
(e) Reason for Defendant’s Actions
Even assuming Plaintiff had offered sufficient evidence to establish a prima facie case, her
claims would fail because Defendant has offered legitimate reasons for its conduct, and there is no
evidence that these reasons are a pretext. Once a plaintiff establishes a prima facie case of
discrimination, the burden shifts to the employer to produce a legitimate, nondiscriminatory reason
for its employment decision. Defendant claims that it offered to extend Plaintiff’s probation because
she was insubordinate and undependable. (Baswell Aff. ¶ 7, ECF No. 21-3.) These are legitimate,
nondiscriminatory reasons for Defendant’s decision.
Plaintiff claims that she can establish that Defendant’s purported reasons are untrue, but she
provides no evidence to support this assertion. Plaintiff admitted in her deposition that she
complained about the job cards, that she followed job cards other than the ones approved by FoxElster, and that she left work in the middle of her shift after a disagreement with management. These
actions were adequate for Defendant to find that Plaintiff was insubordinate and undependable, and
were a sufficient reason for Defendant to extend Plaintiff’s probation. Plaintiff also argues that she
can show pretext because Isaacson passed his probation, but as discussed above, Isaacson did not
engage in the same conduct as Plaintiff. There is no evidence that he failed to follow the job cards
or complained to management about them. Thus, Plaintiff has not shown that Defendant’s reasons
For the reasons discussed herein, there is no evidence that Plaintiff was treated differently
from a similarly-situated employee. Thus, she has not met her burden of providing evidence that
would permit an inference of discrimination. Consequently, Defendant’s motion for summary
judgment will be granted and judgment will be entered in favor of Defendant.
An order and judgment consistent with this opinion will be entered.
/s/ Janet T. Neff
JANET T. NEFF
UNITED STATES DISTRICT JUDGE
Dated: March 2, 2017
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