Opinion
No. 01-71994
June 13, 2002
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Defendants' Motion for Summary Judgment. Plaintiff responded and Defendants replied. Plaintiff also filed an Ex Parte Motion to File a Surresponsive Brief in Response to Defendant's [ sic] Supplemental Brief in Support of Their Motion for Summary Judgment. Defendants responded and Plaintiff replied. The Court finds that the parties have adequately set forth the relevant law and facts, and that oral argument would not aid in the disposition of the instant motions. See E.D. MICH. L.R. 7.1(e)(2). Accordingly, the Court ORDERS that the motions be decided on the briefs submitted. Plaintiffs Ex Parte Motion to File a Surresponsive Brief in Response to Defendant's [ sic] Supplemental Brief in Support of Their Motion for Summary Judgment is GRANTED; Defendants' Motion for Summary Judgment is GRANTED as to Count I of Plaintiffs complaint regarding Defendant Little Caesars Enterprises, Defendant Olympia Entertainment, Defendant Detroit Tigers, and Defendant Ilitch Holdings, and as to Counts II, III, IV, V and VI of Plaintiffs complaint regarding all defendants, and is DENIED as to Count I of Plaintiffs complaint regarding Defendant Olympia Aviation.
II. BACKGROUND
Defendant MM Ilitch Holdings, Inc., (hereinafter "Ilitch Holdings") owns a popular chain of pizza restaurants named Little Caesars, a professional hockey team named the Detroit Red Wings, a professional baseball team named the Detroit Tigers, as well as other unrelated business entities. Because of Ilitch Holdings' large number of subsidiary businesses, it has extensive travel needs. Consequently, Ilitch Holdings created a subsidiary organization in 1990, Defendant Olympia Aviation, to provide for its air travel needs. Olympia Aviation operated two aircraft: a Gulfstream II, which is a smaller airplane designed to seat roughly a dozen passengers; and a DC 9, which was used to provide transportation for the professional sports teams. Ilitch Holdings obtained the DC 9 in April 2000, and hired a flight crew for that airplane. Plaintiff Lisa Kesner worked on that flight crew as a flight attendant.
Plaintiff alleges that she was harassed by members of the Detroit Tigers. Plaintiff alleges that the harassment started on her first flight with the Tigers in April 2000, when a group of players were looking at pornographic material on one of the player's laptop computers. She alleges that the computer was positioned in a way that allowed Plaintiffs as well as at least one other flight attendant, Jenifer Campbell, to witness it. Plaintiff alleges that the harassment was thereafter continued. For instance, she alleges that some of the players repeatedly called her pejorative and profane names, such as "bitch," "cunt," and "hide." She alleges that some players would make comments with sexual innuendos. For example, Plaintiff alleges that when she would ask players if they wanted a dessert, players would occasionally reply by asking whether she had any "cooter pie" or "hair pie." Or else, she alleges that two players, Doug Brocail and Gregg Jefferies, asked her whether she would give her husband a "blowjob in a van?" Plaintiff also alleges that some of the players would touch or rub against her breasts and buttocks in a manner that she thought was inappropriate, and that made her uncomfortable.
Plaintiff alleges that the harassment from the players culminated in July 2000. Before the airplane took off, Plaintiff alleges that she noticed a player, Jeff Weaver, walk out of the lavatory. She saw a smoke cloud and smelled burnt marijuana following him out of the lavatory, and saw ashes inside the lavatory. Plaintiff alleges that she approached Weaver and Matt Anderson, who were sitting next to each other, and told them that smoking marijuana was not permitted on the flight. She alleges that Anderson responded by barking profanities at her, and calling her a "stupid bitch." Later that flight, she alleges that another player, Bobby Higginson, confronted and chastised her for reporting the marijuana smoking. A third player, Brad Ausmus, also confronted Plaintiff, and allegedly called her a "dumb bitch" for reporting the marijuana smoking incident. Plaintiff alleges that she was treated this way by the players because of her gender, and that she had never seen the players treat her male counterparts on the flight crew in the same manner.
Plaintiffs complaints extend beyond the treatment she received from the players; she alleges that she was mistreated by other members of the flight crew as well. Plaintiff alleges that two pilots, Al Long and Pat White, repeatedly touched her in a manner that she thought was "inappropriate," including repeatedly touching her breasts with their hands, and that a third pilot, Rob Mintari, touched her buttocks with his hands on three separate occasions.
Plaintiff had many difficulties with Mintari, who was the chief pilot. Plaintiff alleges that Mintari personally disliked Plaintiff, and stated that he would fire her if he had the chance. Moreover, Plaintiff alleges that Mintari's personal behavior was reprehensible: he would take unnecessary chances as a pilot, such as flying from Seattle to Detroit without stopping for fuel; he often took alcohol that belonged to the team off the airplane for his own personal consumption; he occasionally bought alcohol with company money for his own use; and he had an affair with another flight attendant, Christina Sharpe.
In September 2002, Plaintiff contacted Mark Oumedian, who was the senior director of human resources — though it is unclear whether he works for Ilitch Holdings or one of the subsidiaries — and voiced her concerns regarding Mintari. Oumedian conducted an investigation, and interviewed several other members of the flight crew. Upon investigating Plaintiffs complaints regarding Mintari, Oumedian found the allegations to be true, and confronted Mintari regarding his conduct. Mintari denied any misconduct, which Oumedian found to be untruthful. Consequently, Oumedian recommended that Mintari be terminated for failing to be forthright, and Christopher Ilitch, a co-President of Ilitch Holdings (hereinafter "Ilitch"), agreed. Though the exact date is unclear, Oumedian and Ilitch met with Mintari during the end of the first week of October 2000, to inform him that his employment was terminated.
About a week later, on October 13, 2000, Oumedian informed the rest of the flight staff, including Plaintiff, that their services were no longer needed because Ilitch Holdings made a decision to outsource their flight operations and dissolve their flight department. The reasons given for the dissolution include: a desire on the part of Ilitch to decrease the number of people reporting directly to him; the low number of hours that Olympia's airplanes actually flew; and the director of the flight operations, Dennis Gease, was planning on retiring. Ilitch decided the best person for operating the DC 9 is a man named Chuck Shipp, partly because Shipp operated another DC 9 for a professional basketball team named the Detroit Pistons. Shipp agreed to operate the DC 9 owned by Ilitch Holdings.
According to both Ilitch and Shipp, Shipp had permission to hire any of the former employees of Olympia Aviation except for Mintari and Sharpe. In fact, according to Shipp, he was told by Ilitch expressly that he could hire "all three girls" if he wanted to. See Shipp's Deposition, 14, 44. "All three girls" referred to three of the flight attendants — Plaintiff, Campbell, and Christine Brown — who worked for Olympia Aviation. Shipp was not permitted to hire the fourth flight attendant, Sharpe, because Ilitch thought that she, along with Mintari, was less than forthright during Oumedian's investigation. Shipp in fact hired both Brown and Campbell to be flight attendants. Shipp stated in his deposition that he did not hire Plaintiff because she did not contact him regarding any job opportunities.
Plaintiff alleges that she was wrongfully terminated because she complained to Oumedian regarding the treatment she received. She alleges that she repeatedly told Brown, the lead flight attendant, and Gease about the harassment she had to endure, however, little was done about it. It was only when she contacted Oumedian that Ilitch Holdings realized the potential for serious legal liability and took action. It was only at that time that Ilitch Holdings decided to outsource its flight operations. For support, Plaintiff points to the fact that it was not until after October 13, 2000 — the day she and her co-workers learned of the dissolution of Olympia Aviation — that Ilitch contacted Shipp for the first time. Further, during a deposition, Shipp stated that Ilitch told him that the reason for wanting to outsource the flight operations was because there were "a lot of internal problems with . . . their employees and they were . . . just tired of all the problems they had." Shipp's Deposition, 13.
Based on these alleged facts, Plaintiff brings this six count complaint. Defendants now make a motion for summary judgment on all claims.
III. LEGAL STANDARD
Summary judgment is appropriate only if the answers to interrogatories, depositions, admissions, and pleadings combined with the affidavits in support show that no genuine issue as to any material fact remains and the moving party is entitled to a judgment as a matter of law. See FED. R. Civ. P. 56(c). A genuine issue of material fact exists when there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). In application of this summary judgment standard, the Court must view all materials supplied, including all pleadings, in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If, however, the only evidence the non-moving party produces is merely colorable, or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50 (citations omitted).
The moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial. See FED. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The non-moving party must do more than show that there is some abstract doubt as to the material facts; rather, it must present significant probative evidence in support of its opposition to the motion for summary judgment in order to defeat the motion for summary judgment. See Moore v. Philip Morris Co., 8 F.3d 335, 339-40 (6th Cir. 1993).
IV. ANALYSIS
In her complaint, Plaintiff alleges the following six claims: Sexual Harassment (Count I); Sex Discrimination (Count II); Retaliation (Count III); Intentional Infliction of Emotional Distress (Count IV); Defamation (Count V); and Tortious Interference with a Business Expectation (Count VI). Defendants filed a motion for summary judgment with regard to all six claims. Plaintiff, however, filed a response to only two of the six claims: Sexual Harassment and Sex Discrimination. Plaintiff filed no response to the other four claims.
1. Sexual Harassment (Count I)
Plaintiffs first claim is for sexual harassment; she states that the relevant law is the Elliott-Larsen Civil Rights Act (hereinafter "ELCRA"). See MICH. COMP. LAWS § 37.2101 et seq. The relevant section of the ELCRA provides:
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
* * * *
(b) Limit, segregate, or classify an employee or an applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.See MICH. COMP. LAWS § 37.2202. The ELCRA states that discrimination based upon sex includes sexual harassment. The relevant section provides:
(i) Discrimination because of sex includes sexual harassment. Sexual harassment means unwanted sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
* * * *
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.See MICH. COMP. LAWS § 37.2103(i). Upon examining this statutory language, the Michigan Supreme Court has determined that there are five elements in a claim for sexual harassment based upon an intimidating, hostile, or offensive work environment:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on the basis of sex;
(3) the employee was subjected to unwelcome sexual conduct or communication;
(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee's employment or created an intimidating, hostile, or offensive work environment; and
(5) respondeat superior.
See Radtke v. Everett, 501 N.W.2d 155, 162 (Mich. 1993).
Defendants do not contest the first three elements of Plaintiffs claim: therefore, the Court finds for the purposes of this motion that Defendants concede that Plaintiff is a member of a protected class; that Plaintiff was subjected to harassment by both the baseball players and by other members of the flight crew; and that she was subjected to this harassment because of her sex. Defendants, however, do contest the fourth element — whether the conduct created an intimidating, hostile, or offensive work environment — and the fifth element — respondeat superior.
As for the fourth element, Defendants argue that "a hostile work environment exists only when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe and pervasive to alter the condition of victim's employment and create an abusive working environment." Defendant's Brief in Support of Motion for Summary Judgment, 15 (citing Harris v. Forklift Sys., Inc., 510 U.S. 317 (1993) [ sic]). In addition, Defendants direct the Court's attention to the deposition of Brown, who states that she did not witness any baseball players engage in any conduct that would be considered harassing.
The proper citation to this case is: Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).
Whether a work environment is intimidating, hostile, or offensive is determined by whether a reasonable person, in the totality of the circumstances, would perceive the conduct at issue as creating an intimidating, hostile, or offensive work environment. See Radtke, 501 N.W.2d at 167. This is a question for the jury to decide. See id. at 168. The Court finds that the alleged behavior — such as being called pejorative names such as "bitch," "cunt," and "hide," being asked about her sexual practices with her husband, and being touched on her breasts and buttocks without her consent — is sufficiently severe that, if it is found to be true, it could allow a reasonable person to find that it created an intimidating, hostile, or offensive work environment. Further, the Court finds that Brown's deposition is inconsistent with Plaintiffs, therefore creating an issue of fact.
Defendants also contest the fifth element of a claim for sexual harassment: respondeat superior. Under the ELCRA, if an employer is accused of sexual harassment, then the respondeat superior inquiry is unnecessary. See Radtke, 501 N.W.2d at 169. Plaintiff, however, does not allege that her employer harassed her, rather, she claims that other employees of Ilitch Holdings, such as the baseball players and members of the flight crew, harassed her. Therefore, in order to be successful on her claim, she must prove: (1) that her employer knew or should have known that a co-worker or supervisor was sexually harassing her; (2) that her employer failed to adequately investigate and take prompt and appropriate remedial action; and (3) that she did not fail to take advantage of reasonable preventative or corrective opportunities. See Chambers v. Trettco, Inc., 614 N.W.2d 910, 914 (Mich. 2000).
Defendants argue that they did not have knowledge of the baseball players' alleged behavior, and that they properly responded to Plaintiffs complaints regarding Mintari. Defendants state that Plaintiff was first employed by Olympia Aviation from 1996 until the time she voluntarily left in 1997 because her husband was relocated to Texas. During her first tenure with Olympia Aviation, she received an employee handbook, which she read and understood. According to the employee handbook, complaints of sexual harassment are to be reported to the Human Resource Center; in other words, Oumedian. When Plaintiff eventually did meet with Oumedian, she did not mention any of her problems with the baseball players. Further, the problems she did mention, namely her difficulties with Mintari, were corrected when Mintari was terminated.
Plaintiff, however, contends that she was instructed to return the handbook upon her resignation in 1997, and was not given a new copy when she returned in 1999. Further, she states in her deposition that she was informed that the handbook did not apply to her. See Plaintiffs Deposition of December 11, 2001, 24. In addition, Plaintiff states that she repeatedly told Gease, the director of flight operations, Mintari, the chief pilot, and Brown, the lead flight attendant, about her problems with the players. For instance, she complained to both Brown and Mintari about being asked by Doug Brocail and Gregg Jefferies whether she would give her husband a "blowjob in a van?" See Plaintiffs Deposition of October 16, 2001, 142-43. According to Plaintiff, Mintari replied that she had to go along with it because it was the baseball players' airplane. See id She also states in her deposition that she complained to the same group of superiors about being called a "bitch" repeatedly by the baseball players. See id at 147-48. She states that Gease witnessed Al Long put his hands on Plaintiffs breasts on at least two occasions, see id at 173-74, and that she complained to Gease about Mintari placing his hands on her buttocks. See id at 182-83. Gease simply replied, however, that she "was to make Robby happy so that [she] could probably maintain [her] job." Id. at 183-84.
Whether or not Plaintiff received the employee handbook that required her to report claims of sexual harassment to Oumedian, it is true that Gease was the head of Olympia Aviation, which is a named Defendant, and, if Plaintiffs allegations are true, then Gease, as well as Plaintiffs other superiors at Olympia Aviation, failed to respond to her complaints. Otherwise, the Court does not find that any of the other named Defendants, which are all corporate entities, can be held liable. Plaintiff fails to provide the Court with any evidence that Defendants Little Caesars Enterprises, Inc., Olympia Entertainment, Inc., or the Detroit Tigers, Inc., had any knowledge of Plaintiff 5 complaints. As for Ilitch Holdings, while Plaintiff did complain to Oumedian about Mintari, thus giving Ilitch Holdings some knowledge of the harassment, Ilitch Holdings took action, and terminated the person — Mintari — that Plaintiff complained of. Thus, these corporate Defendants cannot be held liable for the harassing behavior of the baseball players and the other members of the flight crew. Therefore, Plaintiffs claim for sexual harassment may go forward with respect to Olympia Aviation, however, it may not with respect to any other named Defendant.
The Court finds that Plaintiff produces probative evidence sufficient to raise a genuine issue of material fact regarding Plaintiffs claim of sexual harassment as to Defendant Olympia Aviation. Therefore, Defendants' motion for summary judgment with regard to Plaintiffs claim of sexual harassment is DENIED as to Defendant Olympia Aviation, and GRANTED as to Defendant Little Caesars Enterprises, Defendant Olympia Entertainment, Defendant Detroit Tigers, and Defendant Ilitch Holdings.
2. Sex Discrimination (Count II)
Plaintiff claims that Defendants discriminated against her on the basis of her sex, which is prohibited by the ELCRA. See MICH. COMP. LAWS § 37.2202. In some discrimination cases, the plaintiff has direct evidence of discrimination. See Hazle v. Ford Motor Co., 628 N.W.2d 515, 520 (Mich. 2001). Direct evidence is defined as "evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Id. (quoting Jacklyn v. Schering-Plough Healthcare Products Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). An example of direct evidence would be the use of racial slurs by a decision maker in a racial discrimination case. See Downey v. Charlevoix County Bd. of Com'rs, 576 N.W.2d 712, 718 (Mich.Ct.App. 1998). Because there is no such direct evidence of discrimination in most cases, the plaintiff can demonstrate circumstances that allow for the inference of discrimination. See Hazle, 628 at 521.
To establish an inference under Michigan law, the plaintiff must make a prima facie case of discrimination by a preponderance of the evidence. See Terwilliger v. GMRI, Inc., 952 F. Supp. 1224, 1227 (E.D. Mich. 1997). If the plaintiff succeeds in establishing a prima facie case, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its treatment of the plaintiff. See id. If the defendant can articulate such a reason, then the plaintiff is entitled to an opportunity to prove that the defendant's articulated reason is merely a pretext for discrimination. See id at 1227-28. "Summary judgment is particularly appropriate in Elliott-Larsen cases `where a plaintiff cannot factually establish a genuine issue of material fact as to whether the nondiscriminatory reasons offered by defendant are but a mere pretext.'" Id. at 1228 (quoting Transou v. Electronic Data Sys., 767 F. Supp. 1392, 1400 (E.D. Mich. 1991)) (citations omitted).
Plaintiff must prove the following four elements in order to make a prima facie case: (1) she is a member of a protected class; (2) she was qualified for the job; (3) she was subject to adverse employment action; (4) and the circumstances surrounding the adverse employment action give rise to an inference of unlawful discrimination, such as proving that similarly situated males were treated differently than she was. See Lytle v. Malady, 579 N.W.2d 906, 914 (Mich. 1998); see also Terwilliger, 952 F. Supp. at 1228. Plaintiff can show that another employee is similarly situated by proving that the other employees' employment was nearly identical to Plaintiffs in all relevant aspects. See Migaldi v. Sherman, 568 N.W.2d 64, 70 (Mich. 1997).
Plaintiff argues that she was intentionally discriminated against, and therefore a burden shifting analysis is unnecessary. Plaintiff, however, directs the Court to no evidence in which a decision maker, such as Oumedian, Shipp, or Ilitch, made a statement or did an act that would constitute direct evidence of discrimination based on sex. For instance, the Court finds that there is no evidence of Ilitch stating that he dissolved the flight operations in order to terminate Plaintiff because she complained about harassment. Plaintiff argues in the alternative, however, that the Court should apply the burden shifting analysis.
Under the burden shifting analysis, Defendants do not contest whether Plaintiff is a member of a protected class, or whether she was qualified for the job. It is also true that Plaintiff was subject to an adverse employment action; she was terminated. In their motion, Defendants argue that Plaintiff was not terminated because of her gender; Defendants argue that there were legitimate business reasons for wanting to outsource the flight operations, which are detailed above. Further, the only reason that Plaintiff was not hired by Shipp was that she did not contact Shipp regarding a job opportunity.
In an effort to create a genuine issue of material fact, Plaintiff argues that Ilitch and Oumedian realized the amount of "danger" that Defendants were in due to their employees' harassing behavior, and due to their management's failure to act. Consequently, she alleges that Ilitch made an arrangement with Shipp to have the latter take over the flight operations in order to give Ilitch an excuse to terminate Plaintiffs employment. Plaintiff asserts that the timing of the events raise a question of fact for the jury.
As mentioned above, Ilitch claims that one reason he decided to outsource the flight operations was because Gease, the former chief of flight operations, was retiring. Plaintiff argues that Gease was actually "forced out" by Ilitch. Further, Plaintiff notes that Shipp was not contacted about taking over Ilitch Holdings' flight operations until after October 13, 2000 — the date Plaintiff and the other members of the flight crew learned of their termination. In addition, Plaintiff argues that in its haste to "outsource" the flight operations, Ilitch Holdings failed to comply with FAA regulations, forcing it to keep its DC 9 on the ground for an unspecified number of days. Finally, Plaintiff examines an internal memorandum from Ilitch to Oumedian dated September 27, 2000, and argues that it appears to be something Ilitch prepared after October 13, 2000, in order to "make it appear that he was [outsourcing for] a legitimate business purpose."
The Court finds that Plaintiff fails to present probative evidence sufficient to create a genuine issue of material fact. For instance, Plaintiff attempts to refute Defendants claim that Gease's retirement was a legitimate business consideration by pointing to Gease's affidavit. In his affidavit, Gease states that he was informed in late August 2000 that he was going to "retire" on September 1, 2000, and that he had no say in the matter. The Court notes that Plaintiff herself contradicts Gease's statement, and states in her deposition that Gease told her in March 2000, on a flight to Hawaii, that he "would be retiring soon." See Plaintiffs Deposition of October 16, 2001, 183-84. Even assuming, however, that Gease was indeed "forced out" on September 1, 2000, that fact does not aid Plaintiff. Plaintiff argues that she was terminated because she complained of the harassment she endured; however, she did not contact Oumedian until after September 1, 2000. In other words, even if Gease was forced to retire, that forced retirement would have had nothing to do with Plaintiffs claim.
Plaintiff attached an improperly notarized copy of Gease's affidavit in her response to Defendants' motion. She filed an ex parte motion to allow her to submit a properly notarized copy of the affidavit. Because Defendants are not prejudiced by the admission of this affidavit, or a properly notarized copy of Sharpe's affidavit, the Court will GRANT Plaintiffs ex parte motion.
Plaintiff also relies heavily on a statement made by Shipp, that Ilitch confessed that a part of the reason that flight operations were being outsourced was because of internal problems with employees. This statement does not raise a genuine issue of material fact; it is true that Ilitch Holdings was having problems with its employees. In particular, Mintari's behavior was found to be inappropriate, which caused discomfort among the other members of the flight crew, and he failed to be forthright about his behavior when confronted about it. Additionally, Ilitch was not aware of any alleged problems that Plaintiff was having with the baseball players because she mentioned nothing to Oumedian regarding the baseball players during his investigation, other than the fact that they tended to be more "high maintenance" than the hockey players. See Oumedian's Deposition, 101-07. Furthermore, Shipp also states in his deposition that he had permission from Ilitch to hire Plaintiff if he so desired; she, however, failed to contact him regarding a position. In other words, none of Shipp's statements can be interpreted to mean that Olympia Aviation was terminated for the purpose of discriminating against Plaintiff, because there is no reason to believe she was the cause of the "internal problems."
Finally, the fact that Shipp was not located until after the flight crew was terminated on October 13, 2000, or that there were problems with the FAA, or that an internal memorandum was poorly written, does not establish a prima facie case of sex discrimination. Indeed, the failure to comply with the FAA regulations, for instance, is understandable in light of the fact that Gease, the director of flight operations, and the person likely to be the most familiar with the FAA regulations, had retired, and no one else was installed as the director of flight operations. In short, none of these pieces of evidence, viewed either individually or together, give rise to an inference that the all of the flight operations were hastily outsourced in order to terminate Plaintiff, especially when Shipp had permission to rehire Plaintiff if he so chose.
In short, the Court finds that Defendants meet their initial burden of proof, and that Plaintiff fails to produce significantly probative evidence sufficient to raise a genuine issue of material fact regarding whether the circumstances surrounding the adverse employment action — Plaintiffs termination — gives rise to an inference of unlawful sex discrimination. Therefore, Defendant's motion for summary judgment on Plaintiffs claim of sex discrimination is GRANTED.
3. Retaliation (Count III)
Plaintiff states in her complaint that she was terminated for complaining about the sexual harassment she endured. In order to make a claim for retaliation under the ELCRA, Plaintiff must show: (1) that she engaged in a protected activity; (2) that this was known by Defendants; (3) that Defendants took an employment action adverse to Plaintiff, and (4) that there was a causal connection between the protected activity and the adverse employment action. See Mitan v. Neiman Marcus, 613 N.W.2d 415, 416 (Mich.Ct.App. 2000). Defendants do not dispute that Plaintiff has met the first three elements of this claim; she engaged protected activity by complaining to Defendants about the sexual harassment, Defendants knew that Plaintiff engaged in the protected activity, and that she was terminated. Defendants argue, however, that there was no causal connection. Again, Defendants argue that their decision to outsource flight operations was for legitimate business reasons, and was not done for the purpose of retaliating against Plaintiff for her complaints. Plaintiff makes no argument in her responsive brief to Defendants' assertions.
The Court finds, for the same reasons stated in the section of this opinion on Part IV.2 of this opinion that Defendants meet their initial burden of proof, and that Plaintiff provides no significantly probative evidence sufficient to raise a genuine issue of material fact regarding whether there was a causal connection between the protected activity and the adverse employment action. Therefore, Defendants' motion for summary judgment as to Plaintiffs claim of Retaliation is GRANTED.
4. Intentional Infliction of Emotional Distress (Count IV)
Plaintiff alleges that the acts of Defendants' employees caused her severe emotional distress. In order to prove a claim for intentional infliction of emotional distress in Michigan, Plaintiff must prove four elements: (1) extreme or outrageous conduct; (2) that intentionally or recklessly; (3) causes; (4) extreme emotional distress. See Grochowalski v. Detroit Inter-Ins. Exch., 430 N.W.2d 822, 824 (Mich.Ct.App. 1988). Defendants argue that in order to state a claim the conduct of the baseball players and other members of the flight crew must have been "outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and could be regarded as atrocious and utterly intolerable in a civilized society." Roberts v. Auto-Owners Ins. Co., 374 N.W.2d 905, 908-09 (Mich. 1985). It is initially for the Court to determine whether Defendants' employees' conduct may reasonably be regarded as extreme or outrageous. See Teadt v. Lutheran Church Mo. Synod, 603 N.W.2d 816, 824 (Mich.Ct.App. 1999). If reasonable people may differ, however, the Court must allow the case to go to the jury. See id.
Defendants argue that, as a matter of law, the conduct Plaintiff complains of is not extreme and outrageous. Defendants also argue that even if Plaintiffs allegations are true, Defendants are not subject to vicarious liability. See Leitch v. Switchenko, 426 N.W.2d 804, 805-06 (Mich.Ct.App. 1988) (holding that an employer is generally not vicariously liable for the intentional torts of its employees "if the employee does the act while engaged in the employer's work, but outside his authority.") (citations omitted).
The Court finds that the conduct Plaintiff complains of can be found by a jury to be extreme and outrageous. In particular, the Court notes that the behavior of the baseball players is particularly shameful and disgraceful. Several generations of children in this country grew up watching our national pastime and idolized the men who played it to the point where those men have become household names: Mickey Mantle, Sandy Koufax, and, more recently, Cal Ripken, Jr., are just a few of the countless number of baseball legends that have shaped our culture. Indeed, baseball has positively influenced American culture in a very real way. For instance, racial barriers began to break down with the arrival of baseball players such as Jackie Robinson and Roberto Clemente. Professional baseball has also influenced the entertainment industry in a positive way. For example, it has been the inspired several classic novels, such as The Natural by Bernard Malamud, as well as many enjoyable movies.
For this reason, the terrible treatment Plaintiff had to endure while working on the baseball players' airplane can be found to be outrageous. Defendants do not deny the fact that the players yelled at and called Plaintiff a "bitch" an absolutely awful name to call any woman, let alone a woman who happens to be the mother of two children repeatedly after she confronted pitchers Weaver and Anderson about the marijuana smoking incident. In addition, the Court notes that these men, heroes to many young boys and girls, use illegal drugs.
There are other incidents that Defendants do not deny. For instance, Defendants do not deny that some players used their laptop computers in order to look at pornographic materials while on the airplane. The Court notes that, "pornographic" may be a polite word; one flight attendant described the images she saw as "bestiality." See Campbell's Deposition, 55. Nor do Defendants make an attempt to deny Plaintiffs allegations that she was groped by some of the players, or that she was called many horrible names by some of the players.
The worst part about all of this is the hubris of the players, engaging in behavior that would be rightfully deemed unacceptable if performed by anyone else in society. For instance, Defendants do not deny that Mintari told Plaintiff that she would just have to go along with the players' conduct because it was their airplane; this is precisely the type of permission that many professional athletes are given simply because of their ability to hit a ball with a bat and run around bases. This type of behavior is tacitly condoned by Major League Baseball as well; while the leagues occasionally condemn a token athlete, such as Daryl Strawberry, for drug abuse or other socially unacceptable behavior, there are likely a large number of athletes who use drugs and who are not punished by the major leagues. The Court notes that Plaintiff alleges — and Defendants do not deny — that the reason Higginson chastised Plaintiff was because "they could be tested for drugs." Plaintiffs Deposition of October 16, 2001, 60. This raises the question, why would he be concerned about drug testing if nobody on the team used drugs?
While Major League Baseball does not randomly test baseball players for drug use, a player may be subject to mandatory drug testing if he admits to using drugs, or is detected using drugs. See Major League Baseball's Drug Policy and Prevention Program, May 15, 1997 at http://news.findlaw.com/legalnews/sports/drugs/policy/baseball/.
In fairness, the Court should state that not all professional baseball players are so boorish. In fact, Plaintiff stated in her deposition that some of the baseball players, such as Wendell McGee and former all-star pitcher Todd Jones, are gentlemen. See Plaintiffs Deposition of December 11, 2001, 56. In addition, Plaintiff stated that the professional hockey players on the Detroit Red Wings are gentlemen as well. See id Thus, many professional athletes do their part to fulfill their roles as heroes to the children that admire them. Not all professional athletes, however, are so virtuous.
Nevertheless, the Court finds that the individuals that shouted profanities at and touched Plaintiff did so outside of their authority. None of the named Defendants are the individuals that actually performed the conduct at issue; instead, all named Defendants are corporate entities that employ said individuals. Plaintiff does not contest Defendants' assertion that said individuals acted outside their authority, and the Court has no reason to believe that said individuals were authorized to perform such conduct. Thus, the Court finds that Defendants are not liable for intentional infliction of emotional distress.
The Court finds that Defendants meet their initial burden of proof, and that Plaintiff provides no significantly probative evidence sufficient to raise a genuine issue of material fact regarding whether Defendants are vicariously liable for the conduct of their employees. Therefore, Defendants' motion for summary judgment as to Plaintiffs claim of Intentional Infliction of Emotional Distress is GRANTED.
5. Defamation (Count V)
Plaintiff alleges that Defendants made defamatory statements about her. In particular, Defendants are alleged to have stated that Plaintiff was institutionalized on two separate occasions following a nervous breakdown, that Plaintiff was heavily medicated, and that Plaintiff was a danger to flight operations. There are four elements in a defamation claim: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; (4) and either action ability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). See Kefgen v. Davidson, 617 N.W.2d 351, 356 (Mich.Ct.App. 2000).
Defendants deny ever making such statements about Plaintiff. In the alternative, Defendants argue that even if they did make such statements, that those statements are true. Defendants attach some of Plaintiff s medical records to its motion, which indicate that before Plaintiff began working for Olympia Aviation, she was hospitalized twice for overdosing on pills, and expressed suicidal ideation on one of those occasions. Plaintiff also admitted in her deposition that she uses mood altering drugs, such as Prozac and Xanax. See Plaintiffs Deposition of October 16, 2001, 50-53. Plaintiff does not make any arguments in her responsive brief to counter Defendants' motion on this claim.
The Court finds that Defendants meet their initial burden of proof, and that Plaintiff provides no significantly probative evidence sufficient to raise a genuine issue of material fact regarding whether Defendants actually made the alleged statement, or whether the statements were false. Therefore, Defendants' motion for summary judgment as to Plaintiffs claim of Defamation is GRANTED.
6. Tortious Interference with a Business Expectation (Count VI)
Plaintiffs final claim is that Defendants made statements to other prospective employers that falsely accuse Plaintiff of unethical or unlawful behavior, thus dissuading other prospective employers from hiring Plaintiff. In Michigan, a claim for tortious interference with a business expectation has four elements: (1) the existence of a valid business relationship or expectancy; (2) knowledge of the relationship or expectancy on the part of Defendants; (3) intentional interference causing or inducing the termination of the relationship or expectancy; (4) which causes actual damage. See Lucas v. Monroe County, 203 F.3d 964, 978-79 (6th Cir. 2000). The business relationship or expectancy must be an actual relationship, and not merely wishful thinking. See id. at 979. To properly allege such a claim, Plaintiff must allege that Defendants intentionally performed a wrongful act, or performed a lawful act with malice, and that Defendants performed this act for the purpose of interfering with Plaintiffs contractual rights or business relations. See Stephenson v. Allstate Ins. Co., 141 F. Supp.2d 784, 794 (E.D. Mich. 2001). In addition, Plaintiff must also allege that Defendants are third parties to the agreement, or, in other words, are not a party that is directly involved in the business relationship. See id. at 784-85.
Again, Plaintiffs responsive brief does not provide the Court with any specific instances of Defendants knowingly interfering with one of her contractual relationships. Defendants deny that they had made any such statements. They cite to the deposition of Laurie Stockton, the owner of another flight service that Ilitch considered hiring, who stated that she heard of no reason that Plaintiff should not be hired in the event Ilitch should retain Stockton's service. See Stockton's Deposition, 10-12. Further, Shipp stated that he was expressly told by Ilitch that he may hire Plaintiff if he wanted to. Thus, the Plaintiff provides the Court with no instances of intentional interference by Defendants.
The Court finds that Defendants meet their initial burden of proof, and that Plaintiff provides no significantly probative evidence sufficient to raise a genuine issue of material fact regarding whether Defendants intentionally interfered with any business relationship or expectancy of Plaintiff. Therefore, Defendants' motion for summary judgment Plaintiffs claim for Tortious with a Business Expectation is GRANTED.
V. CONCLUSION
For the reasons stated above, Plaintiffs Ex Parte Motion to File a Surresponsive Brief in Response to Defendant's [ sic] Supplemental Brief in Support of Their Motion for Summary Judgment is GRANTED; Defendants' Motion for Summary Judgment is GRANTED as to Count I of Plaintiffs complaint regarding Defendant Little Caesars Enterprises, Defendant Olympia Entertainment, Defendant Detroit Tigers, and Defendant Ilitch Holdings, and as to Counts II, III, IV, V and VI of Plaintiffs complaint regarding all defendants, and is DENTED as to Count I of Plaintiffs complaint regarding Defendant Olympia Aviation.
IT IS SO ORDERED.