Opinion
CASE NO.: 02-73045
June 23, 2003
OPINION
Plaintiff Dan Beaty filed this action against his former employer alleging age discrimination in violation of Michigan's Elliott-Larsen Civil Rights Act. Plaintiff also alleges that Defendant violated the Bullard-PIaweeki Employee Right to Know Act by failing to comply with Plaintiffs request for a copy of his personnel record. Defendant removed this case to federal court on the basis of diversity jurisdiction on or about July 25, 2002. Currently before the Court is Defendant's Motion for Summary Judgment, A hearing was held on June 10, 2003. For the reasons set forth below, Defendant's motion is granted.
Background
Plaintiff began working for Defendant in 1995 as a store manager, (Pl.'s Br. in Opp'n Exh. 14 at 22) According to Plaintiff, he was transferred from the Grand Blanc store to the Brighton store in 1997, Plaintiff met Nancy Lewis, cake decorator at the Brighton store, and sometime in 2001, Plaintiff and Lewis began exchanging neck and back rubs. (PL's Br. in Opp'n Exh. 14 at 113). The two exchanged neck rubs three to four times per week. (PL's Br, in Opp'n at 2). Plaintiff stated by way of deposition that a typical back rub would last anywhere from two to five minutes. (Def.'s Br., D. Beaty Dep. at 129). The back and neck rubs took place in the bakery area which served as an "impromptu gathering place for employees," and was visible to customers. (Def.'s Br. at 5),
There is conflicting information in the record as to when Plaintiffs employment with Defendant began. Plaintiff states by way of deposition he was hired in January, 1995. According to Mary Holden, Defendant's Personnel Director, Plaintiff was hired in January, 1997, (Def,'s Mot. Exh. A at ¶ 4).
In April or May, 2001, Sharon McDonald, bakery manager and Lewis's supervisor asked Plaintiff whether he was having an affair with Lewis. (PL's Br. in Opp'n Exh. 14 at 145). Plaintiff told McDonald that he was not having an affair with Lewis, Plaintiff maintains that the issue of back rubs did not come up during that conversation. (PL's Br, in Opp'n Exh. 14 at 146). During deposition, Plaintiff stated that he first became aware that Defendant was concerned about the neck and back rubs on the Friday before he was fired. (PL's Br. in Opp'n Exh. 14 at 146). On that day, Chris Dunn, Defendant's People Resource Manager, came to the Brighton store, asked Plaintiff whether he was giving back rubs, and told Plaintiff to stop. (PL's Br, in Opp'n Exh, 14 at 161-162).
On January 18, 2002, Plaintiff met with Bryan Long and Ed Przybylo and was informed that he was being terminated for "unprofessional conduct" (Pl.'s Br. in Opp'n Exh. 14 at 166-67), Although Plaintiff docs not remember whether the issue of back rubs was mentioned at this meeting, when asked at deposition whether he thought he was terminated because of the back rubs, Plaintiff responded that, "I figured that was probably it," (PL's Br. in Opp'n Exh. 14 at 168). Plaintiff was 58 years old when he was terminated. Defendant believes it is entitled to summary judgment on the age discrimination claim because, assuming Plaintiff establishes a prima facie case, Plaintiff cannot demonstrate Defendant's legitimate reason, i.e. unprofessional conduct, is pretext for discrimination, Although Plaintiff acknowledges that he has no direct evidence that his discharge constitutes age discrimination (PL's Br, in Opp'n at 3), Plaintiff argues that he can demonstrate that Defendant's legitimate non-discriminatory reason unprofessional conduct, is a pretext for discrimination.
Bryan Long is a district manager and was Plaintiffs immediate supervisor; Ed Przybylo is a Director for Training and Development.
Plaintiff also alleges a violation of the Bullard-Plaweeki Employee Right to Know Act. Plaintiff requested, through counsel, a copy of his personnel record on or about February 13, 2002. Plaintiff did not receive the personnel file until October 22, 2002. Defendant believes it is entitled to summary judgment on this claim because the Act does not provide for any specific time period; therefore, a mere delay in time docs not state a claim under the Act. (Def.'s Br. at 16). Further, Defendant argues that since Plaintiff has received his personnel file and has suffered no damages, his claim is moot. (Def's Br. at 16), Plaintiff argues that Defendant's failure to provide him with a copy of his personnel file after his first request violates the Act. In addition, Plaintiff argues that Defendant's violation of the Act was willful. As such, Plaintiff believes he is entitled to $200,00 in statutory damages plus costs, attorney fees and actual damages, (PL's Br. in Opp'n at 12-13).
Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." There is no genuine issue of material fact for trial unless, by viewing the evidence in favor of the nonmoving party, a reasonable jury could return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986).
The non-moving party must do more than show that there is some metaphysical doubt as to the material facts, Pierce v. Commonwealth Life Ins, Co., 40 F.3d 796, 800 (6th Cir. 1994). The nonmoving party must present significant probative evidence in support of its opposition to the motion for summary judgment. Moore v. Phillip Morris Co., Inc., 8 F.3d 335, 340 (6th Cir. 1993). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to show that there is a genuine issue for trial. FED, R. CIV. P. 56(c); Celotex Corp, v. Catrett, All U.S. 317, 324, 106 S.Ct. 2548, 2552-53 (1986).
Discussion
I. Plaintiffs Age Discrimination ClaimPlaintiffs complaint alleges age discrimination in violation of Michigan's Elliot-Larsen Civil Rights Act. When analyzing claims of age discrimination under state law, Michigan courts utilize federal law, Plicth v. St, Raymond Church, 210 Mich, App. 568, 573, 534 KW.2d 164, 167 (1995).
In order to establish a prima facie case of age discrimination, Plaintiff must show: 1) that he is a member of a protected group; 2) that he was subject to an adverse employment decision; 3) that he was qualified for the position; and 4) that he was replaced by a person outside of the protected class. Kline v. Tenn. Valley Auth., 128 F.3d 337, 349 (6th Cir. 1997), The fourth prong can also be satisfied by showing that similarly situated employees outside of the protected group were treated more favorably. Beaven v. Com. of Ky., 783 F.2d 672, 767 (6th Cir. 1986),
Defendant docs not contest the fact that Plaintiff has established a prima facie case, i.e. that Plaintiff is a member of the protected class, he was qualified for the position of store manager, and his termination is an adverse employment action. It also appears from the record that Plaintiff was replaced by a younger manager, (Def,'s Br, at 14). However, Defendant argues that even if Plaintiff has presented a prima facie case, Plaintiff cannot show pretext.
Having met the burden of establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate non-discriminatory reason for its action. See Mitchell v. Toledo Hospital, 964 F.2d 577, 584 (6th Gin 1992). This burden on the defendant is one / of production, i.e. the production of evidence demonstrating that the adverse employment action was taken for a legitimate non-discriminatory reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-507, 113 S.Ct. 2742, 2747 (1993). "The defendant must clearly set forth, through the introduction of admissible evidence/ reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Id. at 507 (emphasis in original) (citing Texas Dept, of Cmty. Affairs v, Burdine, 450 U.S. 248, 254-255, 101 S.Ct. 1089, 1094-1095 (1981)).
In this case, Defendant maintains that Plaintiff was terminated for unprofessional conduct, i.e. exchanging back and neck rubs on a regular basis with an hourly employee. Plaintiff docs not dispute that these back rubs took place. Having produced evidence of a non-discriminatory reason, the burden now shifts back to the Plaintiff to show by a preponderance that Defendant's legitimate reason is a pretext for age discrimination, Mitchell, 964 F.2d at 584.
There arc three ways a plaintiff can show pretext, Plaintiff can demonstrate that: 1) the proffered reason had no basis in fact; 2) the proffered reason did not actually motivate the discharge; or 3) the proffered reason was insufficient to motivate the discharge. Manzer v. Diamond Shamrock Chems, Co., 29 F.3d 1078, 1084 (6th Cir. 1994). The third method typically involves a showing that "other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff" Id. at 1084, Plaintiff argues he can show pretext under the second and third methods.
First, Plaintiff argues that Defendant's statement that it received a complaint from Sharon McDonald, bakery manager, about Plaintiffs conduct, indicates pretext because McDonald denied making any complaints about Plaintiff to "anybody higher up on the chain," (PL's Br. in Opp'n at 5-6, Exh. 14, S. McDonald Dep. at 15),
Doug Thomas, Director of People Resources and Services, stated byway of a sworn declaration that he received a complaint from Vicki Collins, a union official, that Plaintiff was exchanging back rubs with an hourly employee, (Def's Br. Exh, E at ¶ 3), Thomas directed Chris Dunn to investigate the matter, (Def's Br. Exh. E at ¶ 4), Dunn stated by way of deposition that he learned during the course of the investigation that McDonald had complained about the back rubs. (PL's Br. in Opp'n Exh. 14, Dunn Dep, at 27), McDonald stated during deposition that she approached Plaintiff directly about the back rubs:
At the hearing on June 10, Plaintiffs counsel acknowledged that Collins complained about Plaintiffs conduct. However, Plaintiffs counsel suggested that because it was unclear who complained to Collins, that this is evidence of pretext. The Court disagrees, It matters only that Collins made the complaint. It is of no consequence whether Defendant can identify who, if anyone, complained to Collins, See Evans v. Toys R Us Ohio. Inc., 221 F.3d 1334, 2000 WL 761803, **11, n. 7 (6th Cir. 2000) (quoting Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)("It is important to note that an employer may make employment decisions `for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.'"))
Dunn's testimony during his deposition was that during the course of his investigation, "[McDonald] stated that she had complained about it," (PL's Br, in Opp. Exh. 14, C, Dunn Dep. at 27).
Q: When you talked to Mr. Beaty, when you had this conversation where you confronted him about these rumors, what specifically did you say to him?
A: I told him that there had been people that had approached me on more than one occasion in regards to the back rubs going on or them spending time together in the bakery eating lunch.
Q: Did you say anything else to him?
A: No.
Q: Do you recall telling him to take it outside?
A: Oh yes. I think I said to him, well, go do it somewhere else, in the lunchroom or outside, but not in the bakery. It's not appropriate.
(Def's Br., S, McDonald Dep. at 42). In this Court's opinion, it is of no significance that Defendant may have been incorrect in stating that it received a complaint from McDonald. The fact is that Doug Thomas received a complaint from Collins regarding Plaintiffs conduct.
Second, Plaintiff believes that because the term "unprofessional" is not defined in Defendant's policies and procedures, Defendant's reason for termination is a pretext, (Pl.'s Br, in Opp, 6-7). It would be impossible for Defendant to list every type of conduct considered to be unprofessional for employees of a supermarket. The Court is satisfied that Plaintiffs conduct as a store manager, in consistently exchanging back and neck rubs in view of other employees and customers, was unprofessional conduct, regardless of whether that term is defined in Defendant's policies and procedures.
Plaintiff also argues that Lewis was disciplined for sexual harassment, and because there was no showing that the back rubs were non-consensual, that demonstrates pretext, (PL's Br. in Opp'n at 7)* At the hearing on June 10, Plaintiffs counsel argued that because Defendant acknowledged that Plaintiffs and Lewis's conduct did not constitute sexual harassment, yet Defendant disciplined Lewis for sexual harassment, that this is evidence of pretext. The Court disagrees. It is true that Dunn stated during deposition that as to Plaintiff and Lewis the conduct was consensual and therefore, not sexual harassment, (Def.'s Reply Br., C, Dunn Dep. at 72), However, Dunn went on to discuss "third-party sexual harassment:"
Q: But you will agree with me that back in January of 2002, your investigation showed only consensual contact between Beaty and Lewis?
A: Yes, that's true.
Q: And your understanding of the sexual harassment policy precluded that from, therefore, being sexual harassment; correct?
A: It precluded that from being sexual harassment in those terms, but there's also third-party sexual harassment that comes into play when things are done in the presence of another employee that causes discomfort to them . . .
In this case, the manager of the department was uncomfortable with what was transpiring in her department, along with other employees.
(Def.'s Reply, C. Dunn Dep. at 73), Thus, Lewis's discipline for violation of the sexual harassment policy is consistent with both Defendant's policy which lists "giving a massage around the neck or shoulders" as an example of sexual harassment, and Dunn's understanding of what constitutes sexual harassment. Even if the basis for Lewis's discipline was incorrect, this evidence is not sufficient to raise a genuine issue of fact as to whether Defendant's legitimate business reason for terminating Plaintiff, i.e. his conduct, was a pretext for age discrimination.
Third, Plaintiff argues that other managers have engaged in "this type of activity." (Pl.'s Br. in Opp'n at 8). Plaintiff points to the deposition testimony of Sandra Flewelling, a bakery employee. She stated that her manager, Mike McCulla, rubbed her shoulders and back on one occasion. McCulla's conduct is not "substantially identical conduct;" therefore, it is not probative on the issue of pretext. Manzer, 29 F.3d at 1084.
This incident involved Flewelling being pushed to the brink on Fat Tuesday in 2001. Apparently, Flewelling's store was mistakenly sent too many paczkis. She had already thrown thousands in the trash and was concerned that the extras could not get to other stores; meanwhile, they kept sending her more. Flewelling stated by way of deposition that she was screaming and she thought she was going to lose her job. Her manager rubbed her shoulders and assured her that she was not going to lose her job over a donut. (Def.'s Reply, S. Flewelling at 9-10).
Flewelling further stated that manager Jim Mitchell did touch her back, but acknowledged it was akin to a pat on the back. (Def.'s Reply S. Flewelling at 30).
Next, Plaintiff points to the deposition testimony of Linda Fisher, a head cashier at Defendant's Grand Blanc store. She stated that other managers, including George Fenner, Mike Valliers, and Don Farmer also gave back, shoulder, and neck rubs. (Pl.'s Br. in Opp'n Exh. 14, L. Fisher Dep. at 7-9). According to Fisher, Fenner used to hug an employee named Connie. (Def,'s Reply, L. Fisher Dep. at 22). Fisher was unaware of any complaints about this behavior and was unaware of whether the company knew of Fenner's conduct. Don Farmer allegedly engaged in back rubs fifteen years ago, (PL's Br. in Opp'n Exh. 14, L. Fisher Dep, at 10), Fisher stated she thought Farmer was "about forty," at the lime. (PL's Br. in Opp'n Exh. 14, L. Fisher Dep, at 12).
Defendant has no record of this employee. (Def.'s Reply at 5, n. 2).
Fisher's testimony about Farmer is not sufficient to create a genuine issue of fact as to pretext. First, there is no indication that Farmer's conduct was substantially identical to Plaintiffs* Second, Doug Thomas, Defendant's Director of People Resources Services, indicates that in 1988, AP merged with Borman's Inc. and since the merger, there were "significant changes in personnel policies and personnel management," (Def.'s Reply Exh, 1 ¶ 7), Thomas states the current sexual harassment policy was not implemented until "well after 1988." (Def.'s Reply Exh, 1 ¶ 8).
Next, Plaintiff points to the deposition testimony of Bonnie Mageli, wherein she discussed the behavior of manager Robert Pachcco. When asked if she ever observed Pacheco giving or receiving back or shoulder rubs, Mageli responded, "no," (PL's Br. in Opp'n Exh. 14, B. Mageli Dep. at 7). Mageli's testimony indicates that Pachcco did engage in other inappropriate verbal conduct, (PL's Br, in Opp'n Exh. 14, B, Mageli Dep, at 8). Defendant investigated Pacheco's conduct, suspended him, then gave him a disciplinary transfer. (Def's Reply Exh, A ¶ 6).
At the hearing, Plaintiffs counsel argued that Pacheco's conduct was more severe, yet he was not discharged. Plaintiff believes that Defendant's treatment of Pachcco shows pretext. The Court disagrees. First, Pachcco is not outside the protected class. At the time of the investigation into his conduct in April, 2002, Pachcco was 43 years old. In addition, Pacheco did not engage in substantially identical conduct, Pachcco made inappropriate comments and admitted that he asked a female employee out to lunch. Finally, Mary Holden, then Defendant's Vice-President of People Resources Sendees, made the decision to terminate Plaintiff. (Def.'s Br. Exh. A). In April, 2002, Holden was no longer employed by Defendant. Therefore, Pacheco is not similarly situated to Plaintiff in any respect, For the purpose of demonstrating pretext, any comparison to Pachcco is unavailing. See Smith v. Leggett Wire Co., 220 F.3d 752, 762 (6th Cir. 2000) (rejecting plaintiffs argument that similarly situated employees for purposes of establishing pretext include employees that were "disciplined by a different decisionmaker and engaged in different conduct.")
Plaintiffs counsel spent a significant amount of time at the hearing discussing the conduct of Jim Mitchell, the manager who replaced Plaintiff, and Shirley Baty, a produce clerk, The record indicates that an investigation into the conduct of these individuals took place and that Mitchell did receive at least one neck rub to relieve a migraine headache from Shirley Baty. (PL's Br, in Opp'n, Exh. 3), However, Mitchell did not give shoulder or neck rubs. Doug Thomas, the individual who conducted the investigation, summarized the findings of the investigation in a sworn declaration:
12. Following Beaty's termination, I was asked to investigate allegations that Jim Mitchell, a store manager, had received back rubs from an hourly employee. This allegedly occurred at store 575.
13. I went to store 575 and talked to a number of employees. My investigation revealed that Mitchell suffered periodically from migraine headaches. On one occasion, he was in the break room suffering from a migraine. Several employees observed him. All said he was in obvious discomfort, Shirley Baty, a clerk and hourly employee at the store, who was over 60 years old, approached Mitchell from behind and briefly "chopped" his neck with her hands. Mitchell did not touch Baty.
14. My investigation took place in February, 2002. The "back chops" took place sometime in mid-2001.
15. After interviewing the employees in store 575, 1 scheduled a meeting with Jim Mitchell at the Company's headquarters in Detroit. I informed Mitchell that he should not have allowed an employee to rub his neck in the store, even under the circumstances. Further, 1 instructed Walt Maciejewski, store manager at store 575, to speak to Shirley Baty and tell her not to engage in any such conduct in the store.
16. Given the fact that Mitchell did not touch anybody, this was a limited occurrence and had not occurred over a protracted period of time, I decided not to discipline him further,
(Def,'s Br. Exh. E). There is nothing in the record indicating that Jim Mitchell engaged in reciprocal back and neck rubs on a regular basis with another employee. Therefore, Mitchell's conduct is not substantially identical to that of Plaintiff. Manzer, 29 F.3d at 1084. As such, it is not sufficient to create a genuine issue of fact as to pretext.
In sum, Plaintiff has failed to identify another manager outside of the protected class who engaged in substantially identical conduct, yet was not terminated.
Plaintiff also discusses alleged romantic relationships between managers and employees. However, Plaintiff has not argued that Defendant has a policy prohibiting such relationships; nor would such conduct occurring outside of work necessarily be unprofessional.
Plaintiff's fourth and final argument related to pretext is his discussion of a "Gallup Poll" which indicates, according to Plaintiff, that he had a good rapport with his employees. (PL's Br. in Opp'n at 10). Plaintiff argues that "the neck rubs upon which defendant relies to support its firing of plaintiff were nothing more than a expression [sic] of the good rapport between plaintiff and his employees," (PL's Br, in Opp'n at 11), That may be true. However, the fact that Plaintiff had good rapport with his employees is irrelevant to the issue of whether Defendant's legitimate reason for terminating Plaintiff was really a pretext for age discrimination.
Plaintiff has failed to meet his burden of creating a genuine issue of fact on the issue of whether Defendant's legitimate reason, i.e. unprofessional conduct, was a pretext forage discrimination. Therefore, summary judgment is proper on Plaintiffs age discrimination claim,
II. Plaintiffs Bullard-Plaweeki Act Claim
Under the Bullard-Plaweeki Act, an employee may obtain a copy of the information contained in their personnel file. MICH. COMP, LAWS § 423, 504, Plaintiffs complaint requests that this Court order Defendant to produce Plaintiffs personnel file. (See First Am. Compl, ¶ 10 A.). Plaintiff acknowledges receipt of the personnel file on October 22, 2002. (PL's Br, in Opp'n at 12). Therefore, Plaintiffs claim under this Act is moot.
Conclusion
For the reasons set forth above, Defendant's Motion for Summary Judgment is granted. A Judgment consistent with this Opinion shall issue.JUDGMENT At a session of said Court, held in U.S. District Courthouse, City of Detroit, County of Wayne, State of Michigan, on ___
Plaintiff Dan Beaty filed this action against his former employer alleging age discrimination in violation of Michigan's Elliott-Larsen Civil Rights Act. Plaintiff also alleges that Defendant violated the Bullard-Plawecki Employee Right to Know Act by failing to comply with Plaintiffs request for a copy of his personnel record. Defendant removed this case to federal court on the basis of diversity jurisdiction on or about July 25, 2002. Currently before the Court is Defendant's Motion for Summary Judgment.For the reasons set forth in an Opinion issued this date, IT IS ORDERED that Defendant's Motion for Summary Judgment is GRANTED and Plaintiffs complaint is DISMISSED.