UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CLAYTON PIERCE, 

 Plaintiff, 

 Civil Case No. 14-14491 

v. Honorable Linda V. Parker 

GENERAL MOTORS LLC, GENE 

LAUER, GREG PEPIN, DAVID NEIL, 

TODD AICHER, and TRENT MILLER, 

 Defendants. 

___________________________/ 

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

 On November 24, 2014, Plaintiff filed this lawsuit against Defendant 

General Motors LLC (“GM”) and the following GM employees: Gene Lauer, Greg 

Pepin, David Neil, Todd Aicher, and Trent Miller (collectively “Defendants”). In 

a Second Amended Complaint filed March 23, 2015, Plaintiff asserts the following 

claims against Defendants: 

 religious discrimination in violation of Title VII of the Civil Rights Act of 

1964 (“Title VII”) (Counts I and V); 

 failure to accommodate Plaintiff’s religious beliefs in violation of Title VII 

(Counts II and VI); 

 race discrimination and retaliation in violation of Title VII and Michigan’s 

Elliott-Larsen Civil Rights Act (“ELCRA”) (Counts III, IV, and VII); 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 1 of 34 Pg ID 1269
2 

 hostile work environment in violation of Title VII and ELCRA (Counts VIII 

and IX); 

 failure to accommodate Plaintiff’s disability in violation of the Americans 

with Disabilities Act (“ADA”) (Count X); and 

 intentional infliction of emotional distress (Count XI).1

(ECF No. 4.) Presently before the Court is Defendants’ motion for summary 

judgment with respect to Plaintiff’s claims, filed pursuant to Federal Rule of Civil 

Procedure 56 on December 18, 2015. The motion has been fully briefed and the 

Court held a motion hearing on August 23, 2016. For the reasons that follow, the 

Court grants Defendants’ motion. 

I. Summary Judgment Standard

 Summary judgment pursuant to Federal Rule of Civil Procedure 56 is 

appropriate “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 central 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

 

1 Plaintiff includes an additional count labeled “punitive damages” in his Second 

Amended Complaint. (ECF No. 4 ¶¶ 130-131.) Punitive damages are a remedy, 

however, not a separate cause of action. See, e.g., Price v. Agrilogic Ins. Servs., 

LLC, 37 F. Supp. 3d 885, 901 (E.D. Ky. 2014); Shoup v. Doyle, 974 F. Supp. 2d 

1058, 1086 (S.D. Ohio 2013); Trakhtenberg v. Oakland Cnty., No. 14-13854, 2015 

WL 6449327, at *19 (E.D. Mich. Oct. 26, 2015). 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 2 of 34 Pg ID 1270
3 

242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56 

mandates summary judgment against a party who fails to establish the existence of 

an element essential to that party’s case and on which that party bears the burden 

of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

The movant has the initial burden of showing “the absence of a genuine 

issue of material fact.” Id. at 323. Once the movant meets this burden, the 

“nonmoving party must come forward with specific facts showing that there is a 

genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To 

demonstrate a genuine issue, the nonmoving party must present sufficient evidence 

upon which a jury could reasonably find for that party; a “scintilla of evidence” is 

insufficient. See Liberty Lobby, 477 U.S. at 252. The court must accept as true the 

non-movant’s evidence and draw “all justifiable inferences” in the non-movant's 

favor. See Liberty Lobby, 477 U.S. at 255. 

“A party asserting that a fact cannot be or is genuinely disputed” must 

designate specifically the materials in the record supporting the assertion, 

“including depositions, documents, electronically stored information, affidavits or 

declarations, stipulations, admissions, interrogatory answers, or other materials.” 

Fed. R. Civ. P. 56(c)(1). A complaint that is neither verified by the plaintiff, sworn 

to, nor made under penalty of perjury does not constitute evidence the court can 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 3 of 34 Pg ID 1271
4 

consider on summary judgment. Turney v. Catholic Health Initiatives, 35 F. 

App’x 166, 168 (6th Cir. 2002) (finding that because the plaintiff did not verify her 

amended complaint or state that her allegations were made under penalty of 

perjury, it was not sufficient to defeat the defendants’ motion for summary 

judgment); cf. El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (indicating that a 

“verified complaint ... carries the same weight as would an affidavit for the 

purposes of summary judgment ... to the extent that it is based on personal 

knowledge.”); see also 28 U.S.C. § 1746. 

The district court is not required to construct a party’s argument from the 

record or search out facts from the record supporting those arguments. See, e.g., 

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (“the trial 

court no longer has a duty to search the entire record to establish that it is bereft of 

a genuine issue of material fact”) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 

1029, 1034 (D.C. Cir. 1988)); see also InterRoyal Corp. v. Sponseller, 889 F.2d 

108, 111 (6th Cir. 1989), cert. denied 494 U.S. 1091 (1990) (“A district court is not 

required to speculate on which portion of the record the nonmoving party relies, 

nor is it obligated to wade through and search the entire record for some specific 

facts that might support the nonmoving party’s claim.”). The parties are required 

to designate with specificity the portions of the record such that the court can 

“readily identify the facts upon which the ... party relies[.]” InterRoyal Corp., 889 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 4 of 34 Pg ID 1272
5 

F.2d at 111. This is expressly stated in this Court’s practice guidelines. See

Motion Practice Rule G1 at 

http://www.mied.uscourts.gov/index.cfm?pageFunction=chambers&judgeid=46. 

II. Factual and Procedural Background2

 Plaintiff, who is African American, began working for GM in 1976. (Defs.’ 

Mot., Ex. A at 9, 15-16.) As a Seventh Day Adventist, Plaintiff observes the 

Sabbath (and therefore does not work) from sundown on Friday until sundown on 

Saturday. (Id. at 16, 104.) Plaintiff has degenerative joint disease in his back, 

which led to him being placed on permanent lifetime restrictions in the 1990’s. 

(Id. at 219-20.) Those restrictions limit his ability to perform excessive standing, 

pushing, bending, pulling, twisting, or lifting over twenty-five or thirty pounds. 

(Id. at 30-31.) Plaintiff also suffers from “anxiety rage attacks,” where he has 

difficulty breathing, his blood pressure rises dangerously high, he clenches his 

hands into fists, and his heart races. (Id. at 8, 72, 73, 78, 83.) Plaintiff takes 

Xanax, and sometimes Zoloft, to control these attacks. (Id. at 140.) He usually 

 

2 Throughout his brief in response to Defendants’ summary judgment motion, 

Plaintiff cites to his Second Amended Complaint to support factual assertions. 

Plaintiff’s pleading (like his initial Complaint and Amended Complaint) is neither 

verified, sworn to, nor made under the penalty of perjury. Therefore, as indicated 

in Section I, the statements in the pleading do not constitute evidence. Why 

Plaintiff’s counsel cites to Plaintiff’s pleading as evidence is baffling to the Court, 

however, as many (although not all) of the factual assertions set forth in his brief 

could have been supported with citations to Plaintiff’s deposition testimony. 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 5 of 34 Pg ID 1273
6 

needs to get up and walk around in circles to control his emotions when he 

experiences an anxiety rage attack. (Id. at 82.) 

 As a GM employee, Plaintiff was a member of the United Automobile 

Workers union (“UAW”). (Id. at 18.) The UAW and GM are signatories to 

national and local collective bargaining agreements, which govern certain terms 

and conditions of Plaintiff’s employment. (Id. at 18-19.) Pursuant to paragraph 

76(A) of the national agreement, before a decision is made to issue discipline to a 

represented employee, the employee is entitled to a meeting where members of 

management, the employee, and a union representative discuss the situation. (Id. 

at 76.) 

 In 2009, Plaintiff moved to GM’s Willow Run parts warehouse, where he 

worked as a “walk picker.” (Id. at 17, 21.) In that position, Plaintiff collected 

parts stored in the warehouse to fill GM orders. (Id. at 21-22.) Plaintiff worked 

the first shift at Willow Run, which began at six o’clock in the morning and ended 

usually at two o’clock in the afternoon. (Id. at 22.) 

 In Fall 2013, Plaintiff’s immediate supervisor at the Willow Run facility was 

Defendant Trent Miller (“Miller”), a Caucasian male. (Id. at 23.) Miller had 

supervised Plaintiff for five or six months by this time. (Id. at 24.) Miller reported 

to Defendant Greg Pepin (“Pepin”), a general supervisor or general foreman, who 

had worked at the Willow Run facility since Plaintiff arrived there and who also 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 6 of 34 Pg ID 1274
7 

previously acted as Plaintiff’s direct supervisor. (Id. at 24-26.) Pepin also is a 

Caucasian male. (Id. at 24.) 

 On September 19, 2013, Pepin spoke to Plaintiff about being late for and 

talking during a “quality wall” meeting. (Id. at 45-47.) While the discussion 

between Plaintiff and Pepin became heated, Plaintiff was not disciplined on this 

occasion. (Id. at 48-49, 53.) Plaintiff admits to arriving a few minutes late to the 

meeting, claiming he was working. (Id.) He denies talking during the meeting, 

however. (Id.) 

 About a month later, on October 21, 2013, Defendant Todd Aicher, a 

Caucasian supervisor, told Plaintiff he would be supervising Plaintiff’s group for 

the day in Miller’s absence. (Id. at 26-27, 69.) According to Plaintiff, Leroy 

Haskins, the UAW local chairman, approached Plaintiff at around nine o’clock in 

the morning and said that Haskins heard Pepin say he was “going to show Clay 

[Plaintiff] who runs the show. I am not taking him off of notice.” (Id. at 41, 70.) 

Later in the shift, Aicher approached Plaintiff and told him he was putting Plaintiff 

“on notice” for being late to a “huddle up” meeting that morning. (Id. at 70.) 

Plaintiff told Aicher he was late to the meeting because he was taking pain 

medication, but that he heard everything that was said. (Id. at 70-71.) 

 In “GM terms,” putting an employee “on notice” means the employee is 

notified he might be subject to discipline. (Id. at 75.) The decision whether or not 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 7 of 34 Pg ID 1275
8 

to discipline the employee is made after the 76A meeting. (Id. at 75-76.) After the 

76A meeting, Plaintiff received a written reprimand for arriving late to the huddle 

up meeting, which did not result in any lost compensation or time. (Id. at 87-89; 

Defs.’ Mot., Ex. A at Pg ID 264.) According to Plaintiff, two Caucasian coworkers arrived to the huddle up meeting after him, but they did not receive written 

reprimands. (Defs.’ Mot., Ex. A at 89; 192, 195.) Plaintiff acknowledged, 

however, that a Caucasian co-worker, Bob Duquette, was issued a written 

reprimand by the same management team for being late to a meeting during the 

same time frame. (Id. at 94.) 

 On November 4, 2013, Plaintiff filed a Charge of Discrimination (“Charge”) 

with the Equal Employment Opportunity Commission and Michigan Department 

of Civil Rights (collectively “EEOC”) alleging that the October 21 reprimand 

constituted race discrimination. (Id. at 91-92; Pl.’s Resp., Ex. E at Pg ID 698.) 

Plaintiff also alleged that GM’s “Caucasian representative is very rude and 

disrespectful towards [Plaintiff] and other African American employees.” (Pl.’s 

Resp., Ex. E.) Plaintiff does not identify any GM employee by name in the 

Charge. (Id.) 

 Plaintiff did not deliver the Charge to anyone at GM and he testified during 

his deposition that he does not know what the agencies do with Charges after they 

are filed. (Defs.’ Mot., Ex. A at 103.) Plaintiff further testified that no one in 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 8 of 34 Pg ID 1276
9 

management at GM ever made any reference to him about his EEOC complaint. 

(Id. at 172-74.) Plaintiff testified, however, that Leroy Haskins told him that Pepin 

discussed Plaintiff’s Charge with Haskins. (Id. at 172.) But Plaintiff did not say 

when the conversation between Haskins and Pepin purportedly occurred and does 

not present any evidence of this fact. 3 (Id.) Plaintiff further testified that 

Delinquency Little, a GM supervisor until she retired in 2015, told Plaintiff that 

management talked about the Charge at a meeting. (Id. at 173-74.) Again, 

Plaintiff did not say when this meeting occurred and he offers no evidence to 

establish its timing. The Charge reflects that it was sent to GM in care of Jackson 

Lewis LLP in Southfield, Michigan. (Pl.’s Resp., Ex. E at Pg ID 698.) 

 At his deposition in this matter, Miller testified that he was not familiar with 

Plaintiff’s EEOC complaints and had never answered or met with anyone from 

GM’s legal or human resources departments to address an EEOC complaint. 

(Defs.’ Mot., Ex. B at 99.) When shown Plaintiff’s Charge at his deposition, Pepin 

testified that he had never seen it before. (Id., Ex. C at 84.) Defendant David Neil, 

a general supervisor at the Willow Run facility, testified that he had never been 

approached by anyone at GM to respond to or help provide an answer to an EEOC 

complaint. (Id., Ex. D at 37.) Gene Lauer, the plant manager at Willow Run, 

 

3 Later in his deposition, Plaintiff testified that Haskins reported that Pepin said he 

“got both charges,” suggesting that the conversation between Haskins and Pepin 

occurred after Plaintiff filed a later Charge. (Defs.’ Mot., Ex. A at 176.) 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 9 of 34 Pg ID 1277
10 

testified at his deposition that he has no dealings with respect to EEOC complaints. 

(Id., Ex. E at 57.)

 At some point, Lauer designated Saturday, December 7, 2013, as a 

mandatory workday for Willow Run employees. Plaintiff approached Neil prior to 

that date, and told Neil he is a Seventh Day Adventist and therefore does not work 

on Saturdays. (Defs.’ Mot., Ex. A at 117.) According to Plaintiff, Neil responded: 

“All I know is you’re supposed to be here. I don’t care what day you go to church 

on.” (Id.) Neil testified during his deposition that when Plaintiff told him he was a 

Seventh Day Adventist and therefore did not work on Saturdays, Neil told Plaintiff 

he needed to talk to his supervisor. (Defs.’ Mot., Ex. D at 30.) Neil was not and 

has never been Plaintiff’s supervisor, and does not have direct supervision over 

Plaintiff’s supervisors. (Id. at 29-30.) 

 Plaintiff did not discuss the issue with any of his supervisors, but he did not 

report to work for the mandatory Saturday on December 7, 2013. Miller, Pepin, 

and Lauer testified that they were unaware of Plaintiff’s religion prior to December 

10, 2013.4 (Defs.’ Mot., Ex. B at 32-33; Ex. C at 29-31, 38; Ex. D at 57.) Plaintiff 

 

4 Citing Neil’s deposition testimony, Plaintiff claims management discussed his 

religion and need for an accommodation during a group meeting. (Pl.’s Resp. Br. 

at Pg ID 665.) While Neil testified that Plaintiff’s need for a religious 

accommodation was mentioned at a management meeting, he could not remember 

exactly when the meeting occurred, but thought it was before Plaintiff’s 

suspension. (Defs.’ Mot., Ex. E at 32-34.) As described infra, Plaintiff was 

suspended on December 12, 2013. 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 10 of 34 Pg ID 1278
11 

admitted during his deposition that he never discussed his religion or need to miss 

work with Miller, Pepin, Aicher, or Lauer. (Id., Ex. A at 116-18.) He claims, 

however, that it was “common knowledge” and “everybody knew” he was a 

Seventh Day Adventist and therefore did not work Saturdays. (Id. at 233-34.) 

 According to Plaintiff, he had never worked a Saturday during the time 

Pepin supervised him even though-- he claims-- there were mandatory Saturdays 

during that period. (Id. at 230-31.) Miller and Lauer testified, however, that 

December 7 was the first mandatory Saturday in 2013. (Defs.’ Mot., Ex. B at 80-

81; Ex. D at 44-45, 46.) Pepin similarly testified that from mid-2011 through 

2013, this was the first mandatory Saturday he recalled. (Id. Ex. C at 9, 32.) 

 When Plaintiff reported to work on December 10, 2013, Miller placed him 

on notice for missing the Saturday overtime. (Id., Ex. A at 126.) Plaintiff told 

Miller at that time that he is a Seventh Day Adventist. (Id.) According to Plaintiff, 

Miller was “shocked” and appeared to have not known. (Id. at 126-28.) Upset 

about being put on notice, Plaintiff went to the plant medical department and then 

took the next day off from work.5

 (Id. at 135.) 

 

5 Plaintiff testified that when he gets upset or experiences one of his rage attacks, he 

often goes straight to “medical.” (Defs.’ Mot., Ex. A at 49, 73.) While employees 

at Willow Run generally are required to get a pass from their supervisor before 

going to medical, Plaintiff claims a nurse at the medical department told him not to 

wait for a pass and to come straight there. (Id. at 73-74.) 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 11 of 34 Pg ID 1279
12 

 When Plaintiff returned to work on Thursday, December 12, Miller 

approached Plaintiff and told him they were going to have his 76A meeting about 

his Saturday absence. (Id. at 136.) There is a factual dispute with respect to what 

Plaintiff said in response. Plaintiff testified that he said, “I can’t believe you guys 

are going through with this,” “I’m tired of playing games with you all,” and “If you 

pursue this, I’m going to take other measure[s].” (Id. at 136-37.) Plaintiff claims 

he and Miller were laughing and joking (id. at 139); however, he also testified that 

he was worked up during their interaction: his heart was racing and he was 

engaging in some of the behaviors (e.g., clenching his fists) which he exhibits 

when he experiences an anxiety rage attack. (Id. at 140-42.) Plaintiff needed to 

take his medication to calm down. (Id. at 144.) 

 According to Miller, Plaintiff “started going crazy” when told about the 76A 

meeting and said something to the effect of “Whoever goes into that room, I can’t 

promise who’s going to come out.” (Defs.’ Mot., Ex. B at 109, 111.) Miller 

interpreted Plaintiff’s statement to be a threat and reported it to his supervisor, 

Pepin. (Id. at 109-110.) 

 Plaintiff’s union representative, Roger Pelton, then came to Plaintiff and told 

Plaintiff that Pepin wants him to go home and take some time off. (Defs.’ Mot., 

Ex. A. at 147.) As Pelton was walking Plaintiff out of the building, Pepin told 

Plaintiff he was being suspended indefinitely and demanded Plaintiff’s badge. (Id. 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 12 of 34 Pg ID 1280
13 

at 150.) Plaintiff claims Pepin said “Get out of my building. I’m sick of you. 

Give me your doggone badge.” (Id. at 151.) Plaintiff then left the facility. 

 The next day, December 13, 2013, Plaintiff filed for a medical leave of 

absence. (Id. at 162.) He has remained on leave since that time, and has not 

returned to active employment. (Id. 162-63.) 

 On December 17, 2013, Plaintiff filed a second Charge of discrimination 

with the EEOC, alleging discrimination based on race and religion and retaliation. 

(Pl.’s Resp., Ex. E at Pg ID 701.) In this second Charge, Plaintiff asserts that GM 

failed to accommodate him based on his religion when he was told he would be 

disciplined for failing to work the mandatory Saturday on December 7. (Id.) He 

reports that he was then suspended indefinitely because of his race and religion and 

in retaliation for his previous EEOC complaint. (Id.) 

 After the EEOC sent Plaintiff a Dismissal and Notice of Rights form with 

respect to his second Charge, Plaintiff sent a letter to the Michigan Department of 

Civil Rights, dated August 20, 2014, claiming bias on the part of its investigator 

and requesting reconsideration of the decision. (Id.) In this letter, Plaintiff states: 

“It is hard to believe that there was not a finding of breach of contract, retaliation, 

and wrongful suspension.” (Id. at 1.) In the next paragraph, Plaintiff states: “It is 

also hard to believe that multiple complaints involving breach of contract, 

wrongful discharge, religious violations, Americans with Disability Act, and racial 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 13 of 34 Pg ID 1281
14 

discrimination[] issues could be dismissed with a single sentence when the 

aforementioned, by their very nature[,] require explication.” (Id. at 1-2.) The 

EEOC sent Plaintiff another Dismissal and Notice of Rights form, signed and dated 

August 25, 2014, indicating it was closing its file on the Charge and had adopted 

the state agency’s findings. (Pl.’s Resp., Ex. E.) 

 In the meantime, on December 20, 2013, GM contacted Plaintiff about 

returning to work. (Defs.’ Mot., Ex. A at 207-08.) GM also sent a letter to 

Plaintiff, dated January 6, 2014, notifying him of his need to return to work. 

(Defs.’ Mot., Ex. F.) GM indicates in the letter, “Upon your return, you will be 

placed in the Par 76(a) interview for the shop rule violation that caused your 

suspension” and that the interview had been scheduled for Wednesday, January 8, 

2014, at 10:00 a.m. (Id.) Plaintiff’s treating physician recommended that Plaintiff 

not return to work, due to “the negative physical and psychological traumas caused 

by a hostile work environment and an unexplained dismissal.” (Pl.’s Resp., Ex. I.) 

Plaintiff did not return to work. 

 Plaintiff contends Pepin orchestrated the various disciplinary actions against 

him and that Aicher and Miller were acting at Pepin’s direction. (Defs.’ Mot., Ex. 

A at 92, 159, 161.) Plaintiff never heard Pepin make any racially offensive or 

disparaging remarks. (Defs.’ Mot., Ex. A at 97.) Plaintiff believes, however, that 

Pepin “just had a thing for me. Some supervisors just don’t like you.” (Id. at 262.) 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 14 of 34 Pg ID 1282
15 

Plaintiff also never heard, directly or indirectly, Aicher, Miller, Neil, or Lauer 

make any racially discriminatory or disparaging statements. (Id. at 99-101.) 

According to Plaintiff, he and Miller got along well prior to their December 12, 

2013 confrontation. (Id. at 138, 160.) 

III. Applicable Law and Analysis

A. Race or Religious Discrimination

 Plaintiff claims Defendants discriminated against him based on his race 

and/or religion, in violation of Title VII and ELCRA, when they issued the October 

2013 verbal reprimand for coming late to a huddle up meeting, put him on notice 

in December 2013 for not reporting on a mandatory Saturday, and suspended him 

in December 2013 for making a threat. 

 As an initial matter, Defendants note that Plaintiff’s Title VII claims fail 

against the individual defendants because “Title VII does not create individual 

liability for individuals in supervisory positions such as [Lauer, Pepin, Neil, 

Aicher, and Miller].” Akers v. Alvey, 338 F.3d 491, 500 (6th Cir. 2003) (citing 

Wathen v. Gen. Elec. Co., 115 F.3d 400 (6th Cir. 1997)). Plaintiff does not 

respond to this argument. Based on the Sixth Circuit precedent Defendants cite, 

this Court agrees that the individual defendants are entitled to summary judgment 

with respect to Plaintiff’s Title VII discrimination claims. 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 15 of 34 Pg ID 1283
16 

 An employee may establish a claim of discrimination under Title VII and 

ELCRA by offering either direct or circumstantial evidence of discrimination. 

White v. Columbus Metro. Hous. Auth., 424 F.3d 232, 238 (6th Cir. 2005) (Title 

VII); Sniecinski v. Blue Cross & Blue Shield of Mich., 666 N.W.2d 186, 192 

(Mich. 2003) (ELCRA). Plaintiff does not present direct evidence to show that 

Defendants discriminated against him because of his race or religion. 

 When a plaintiff proves his case through circumstantial evidence, he begins 

by establishing a prima facie case of discrimination. DiCarlo v. Potter, 358 F.3d 

408, 414 (6th Cir. 2004) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 

248, 252-53 (1981)). To make this showing, the plaintiff must establish the 

following: “(1) he is a member of a protected class; (2) he was qualified for his 

job; (3) he suffered an adverse employment decision; and (4) he was replaced by a 

person outside the protected class or treated differently than similarly situated nonprotected employees.” White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th 

Cir. 2008) (citations omitted). If the plaintiff sets forth a prima facie case, an 

inference or rebuttable presumption of discrimination arises. DiCarlo, 358 F.3d at 

414. 

 In order to rebut this inference, the employer must “articulate some 

legitimate, non-discriminatory reason” for its conduct. Id. If the employer 

articulates such a reason, “ ‘the plaintiff must then have an opportunity to prove by 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 16 of 34 Pg ID 1284
17 

a preponderance of the evidence that the legitimate reasons offered by the 

defendant were not its true reasons, but were a pretext for discrimination.’ ” Id. at 

414-15 (quoting Burdine, 450 U.S. at 253). 

 Defendants argue that Plaintiff cannot establish a prima facie case of 

discrimination with respect to the October 2013 reprimand or December 2013 

potential discipline because neither constituted an adverse action. The Sixth 

Circuit has provided the following guidance for identifying “an adverse 

employment action”: 

[A] materially adverse change in the terms and 

conditions of employment must be more disruptive than a 

mere inconvenience or an alteration of job 

responsibilities. A materially adverse change might be 

indicated by a termination of employment, a demotion 

evidenced by a decrease in wage or salary, a less 

distinguished title, a material loss of benefits, 

significantly diminished material responsibilities, or 

other indices that might be unique to a particular 

situation. 

Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999) (quoting Crady v. 

Liberty Nat'l Bank & Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.1993)). The 

Sixth Circuit has held that “[a] written reprimand, without evidence that it led to a 

materially adverse consequence such as lowered pay, demotion, suspension, or the 

like, is not a materially adverse employment action.” Cregget v. Jefferson Cty. Bd. 

of Educ., 491 F. App’x 561, 566 (6th Cir. 2012) (citing cases); see also Taylor v. 

Geithner, 703 F.3d 328, 338 (6th Cir. 2013) (finding that two written reprimands 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 17 of 34 Pg ID 1285
18 

did not amount to an adverse employment action because there was “no evidence 

in the record that any disciplinary action resulted from [the two reprimands], or 

that [the two reprimands] related to a larger pattern of intimidation by constantly 

reprimanding [the employee], for example.”). 

 At his deposition, Plaintiff testified that he did not incur a loss in pay 

because of the October 2013 reprimand (see Defs.’ Mot., Ex. A at 88), and he 

admitted that he never attended a 76A meeting to determine whether he would be 

disciplined for failing to report on the mandatory Saturday.6

 In response to 

Defendants’ motion, Plaintiff does not identify any material adverse consequence 

resulting from these incidents.7

 He, therefore, cannot establish a prima facie case 

of discrimination based on the October 2013 reprimand or December 2013 

potential discipline.8

 Moreover, with respect to those actions as well as his 

 

6 Plaintiff in fact testified that he did not think GM would impose any discipline for 

the Saturday absence because it would have been excused based on his religion. 

(Defs.’ Mot., Ex. A at 149.) He further testified that if any discipline had been 

imposed, it would have been simply a written reprimand or warning. (Id. at 150.) 7 Attempting to distinguish one of the cases Defendants cite to with respect to their 

“adverse action” argument, Amthor v. City of Macomb No. 13-14100, 2015 WL 

1780637 (E.D. Mich. Apr. 20, 2015), Plaintiff argues that he “was immediately 

indefinitely suspended; thrown out of the plant; badge taken; lied on; personnel file 

fraudulently papered to give management the appearance of a ‘legitimate business’ 

excuse to suspend indefinitely or terminat[e] him.” (Pl.’s Resp. Br. at Pg ID 672.) 

The actions Plaintiff refers to-- and which there is evidence to support-- were taken 

in relation to his December 2013 indefinite suspension, however. 

8 Defendants alternatively argue that Plaintiff cannot state a prima facie case of 

discrimination based on his October 2013 written reprimand because he admits that 

the same supervisory staff disciplined a similarly situated Caucasian employee for 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 18 of 34 Pg ID 1286
19 

December 12, 2013 suspension, Defendants argue that Plaintiff’s claim of religious 

discrimination fails because there is no evidence that the involved decision makers 

were aware that Plaintiff was a Seventh Day Adventist. 

 To establish a prima facie case of discrimination where an employee’s 

personal attributes are not obvious to the employer (for example, the employee’s 

religious beliefs or pregnancy before the employee is visibly pregnant), the 

employee must prove the employer was aware of the plaintiff’s particular personal 

attributes. See Geraci v. Moody-Tottrup Int’l, Inc., 82 F.3d 578, 581-82 (3d Cir. 

1996); see also Prebilich-Holland v. Gaylord Entmt. Co., 297 F.3d 438 (6th Cir. 

2002) (following Circuits holding that “a pregnancy discrimination claim cannot 

succeed in the absence of the employer’s knowledge of the pregnancy” and citing 

Sixth Circuit decisions requiring evidence of the employer’s knowledge of a 

plaintiff’s disability to establish a prima facie case of disability discrimination);

Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1306 (11th Cir. 2002) (holding 

that the plaintiff failed to establish a prima facie case of religious discrimination 

where he failed to “present any evidence that the decision-maker knew of his 

religion[.]”). “[I]t is counter-intuitive to infer that the employer discriminated on 

 

the same misconduct. Further, Defendants argue that Plaintiff fails to identify a 

Caucasian employee or an employee of a different religion who failed to report for 

a mandatory Saturday who was treated differently than Plaintiff. Larue Mason, an 

African American co-worker also failed to report for work on the December 7 

mandatory Saturday. (Defs.’ Mot., Ex. A at 129.) Plaintiff acknowledged that 

Miller initially placed Mason on notice for missing work that day. (Id.) 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 19 of 34 Pg ID 1287
20 

the basis of a condition of which it was wholly ignorant.” Geraci, 82 F.3d at 58. 

As the Sixth Circuit set forth in Virts v. Consolidated Freightways Corp. of 

Delaware, 285 F.3d 508 (2002), to establish a prima face case of religious 

discrimination, the plaintiff must show that “he holds a sincere religious belief that 

conflicts with an employment requirement . . . and he has informed the employer 

about the conflicts[.]” Id. at 515. 

 Here, Plaintiff never provided documentation to GM identifying his religion 

or need for an accommodation because of his religious beliefs, and he agreed 

during his deposition that his personnel file does not contain such documentation. 

(Defs.’ Mot., Ex. A at 109-110, 112-13.) The evidence reflects that before Plaintiff 

failed to report to work on the mandatory Saturday on December 7, 2013, he never 

discussed his religion or inability to work on Saturdays because of his religion with 

Miller, Pepin, Aicher, or Lauer. While Plaintiff may have discussed his religion 

and resulting inability to work Saturdays with Neil, Neil was not Plaintiff’s 

supervisor and was not involved in any decision to discipline Plaintiff for failing to 

work on December 7. Moreover, the evidence does not reflect that Neil informed 

other supervisors of Plaintiff’s religion or need for religious accommodation before

Plaintiff was put on notice for failing to work on that date. Finally, Plaintiff cannot 

prove the decision makers’ knowledge of his religion or need for a religious 

accommodation based on his claim that both were “common knowledge” at 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 20 of 34 Pg ID 1288
21 

Willow Run. See Geraci, 82 F.3d at 582 (holding that the plaintiff’s claim that she 

told some co-workers she was pregnant and that her pregnancy became a “common 

topic of discussion in the office” was insufficient to show that her managers knew 

she was pregnant when they terminated her); Hedberg v. Indiana Bell Tel. Co., 47 

F.3d 928, 932 (7th Cir. 1995) (stating that a plaintiff’s speculation about his 

employer’s knowledge of his condition does not create a genuine issue of material 

fact; “instead, it creates a false issue, the demolition of which is a primary goal of 

summary judgment”); see also Nelski v. Trans Union, LLC, 86 F. App’x 840, 846 

(6th Cir. 2004) (“Unsubstantiated speculation is not enough to create a genuine 

issue of material fact on which a jury could reasonably find for [the plaintiff].”). 

The Court therefore holds that Defendant is entitled to summary judgment with 

respect to Plaintiff’s claims alleging religious discrimination. This leaves 

Plaintiff’s race discrimination claims based on his December 12 suspension. 

 Defendants do not dispute that Plaintiff’s suspension is an adverse action 

and they concede, for purposes of their motion, that Plaintiff can establish a prima 

facie case of discrimination based on this action. (Defs.’ Br. in Supp. of Mot. at Pg 

ID 175.) Defendants contend, however, that Plaintiff cannot demonstrate that their 

non-discriminatory reason for suspending him-- that is, that he made a statement 

management interpreted to be a threat of violence-- was a pretext for 

discrimination. 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 21 of 34 Pg ID 1289
22 

 A plaintiff can show pretext by demonstrating that the defendant’s stated 

reason for the adverse employment action (1) has no basis in fact, (2) did not 

actually motivate the defendant’s action, or (3) was insufficient to motivate the 

action. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). The plaintiff 

“must produce sufficient evidence from which a jury could reasonably reject [the 

employer’s] explanation of why it [took the adverse action against the plaintiff].” 

Id. (citing Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 526 (6th Cir. 2008)). 

“ ‘[A]t bottom the question is always whether the employer made up its stated 

reason to conceal intentional [retaliation].’ ” Tingle v. Arbors at Hilliard, 692 F.3d 

523, 530 (6th Cir. 2012) (quoting Chen, 580 F.3d at 400 n.4). Plaintiff argues that 

Defendants’ proffered non-discriminatory reason for suspending him has no basis 

in fact. 

 Miller testified that he interpreted Plaintiff’s statement to be a threat and that 

he reported this to Pepin and other facility managers. (Defs.’ Mot., Ex. B at 109-

110.) Plaintiff denies making any threatening statements to Miller. However, even 

if a jury believes Plaintiff, there is no evidence to suggest that the other supervisors 

(particularly Pepin, who seems to have made the subsequent decision to suspend 

Plaintiff) did not honestly believe Miller.9

 Moreover, there is no evidence 

suggesting that Defendants made up this reason to conceal intentional race or 

 

9 As mentioned previously, Plaintiff contends Miller was acting at Pepin’s 

directive. He offers absolutely no evidence to support this claim, however. 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 22 of 34 Pg ID 1290
23 

religious discrimination.10 See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 

(1993) (stating “a reason cannot be proved to be ‘a pretext for discrimination’ 

unless it is shown both that the reason was false, and that discrimination was the 

real reason”). 

 Plaintiff offers no evidence of racial or religious animus on the part of any of 

his supervisors. At most, Plaintiff presents evidence suggesting Pepin did not like 

him. Plaintiff does not offer any evidence, however, suggesting that race or 

religious bias motivated Pepin’s feelings toward him. As Plaintiff himself 

testified, “Some supervisors just don’t like you.” (Defs.’ Mot., Ex. A at 262.) 

Absent proof that Plaintiff’s race engendered this personal animosity, he fails to 

present evidence of unlawful discrimination. See Barnett v. Dep’t of Veteran 

Affairs, 153 F.3d 338, 343(6th Cir. 1998) (upholding the district court’s 

determination that witness’s statements describing how supervisor made it known 

that “he disliked the plaintiff and used her as the butt of office jokes, are consistent 

with personal dislike rather than discriminatory animus”); Nizami v. Pfizer Inc., 

107 F. Supp. 2d 791, 805 n. 15 (E.D. Mich. 2000) (Plainly ... even such a 

subjective consideration as personal dislike can be a ‘proper’-- that is, not 

 

10 Throughout his response brief, Plaintiff claims Defendants fabricated his “661 

personnel report” (which is attached as Exhibit D to Plaintiff’s motion) and 

contends that this fabrication proves their discriminatory and retaliatory animus. 

Plaintiff fails to support his claim of fabrication with any evidence. In any event, 

there is no evidence from which a reasonable juror could conclude that any 

fabrication was motivated by unlawful bias. 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 23 of 34 Pg ID 1291
24 

unlawful-- basis for avoiding liability under antidiscrimination law, as long as this 

personal animus is not the product of the plaintiff’s membership in a protected 

class.”). 

 For these reasons, the Court holds that Defendants are entitled to summary 

judgment with respect to Plaintiff’s claims alleging race and religious 

discrimination (Counts I, II, IV-VI). 

B. Retaliation

 Plaintiff claims Defendants violated Title VII and ELCRA by retaliating 

against him for engaging in protected conduct when they placed him on notice for 

missing the mandatory Saturday and suspended him indefinitely based on the 

perceived threat to Miller. 

 Absent direct evidence of a retaliatory purpose, the same burden-shifting 

framework applicable to Plaintiff’s discrimination claims governs his Title VII and 

ELCRA retaliation claims. Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 

(6th Cir. 2009) (Title VII); Meyer v. City of Ctr. Line, 619 N.W.2d 182, 188 (Mich. 

Ct. App. 2000) (ELCRA). First, Plaintiff must establish a prima facie case of 

retaliation by showing: (1) he engaged in activity protected by Title VII [or 

ELCRA]; (2) Defendants knew about Plaintiff’s exercise of this right; (3) 

Defendant took an employment action adverse to Plaintiff; and (4) the protected 

activity and the adverse employment action are causally connected. Gribcheck v. 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 24 of 34 Pg ID 1292
25 

Runyon, 245 F.3d 547, 550 (6th Cir. 2001) (Title VII); Garg v. Macomb Cnty. 

Cmty. Mental Health Servs., 696 N.W.2d 646, 653 (Mich. 2005) (listing same 

elements in ELCRA retaliation analysis). Under Title VII, Plaintiff must show that 

his protected activity “was a but-for cause of the alleged adverse action by 

[Defendants].” Univ. of Tex. SW Med. Ctr. v. Nassar, -- U.S. --, --, 133 S. Ct. 

2517, 2534 (2013). Under ELCRA, Plaintiff’s protected activity must be a 

“significant factor” in Defendants’ adverse employment action. Barrett v. Kirtland 

Cmty. Coll., 628 N.W.2d 63, 70 (Mich. Ct. App. 2001). 

 If Plaintiff satisfies this burden, Defendants must come forward with a 

legitimate, non-retaliatory reason for the employment action. Ladd, 552 F.3d at 

502. In response, Plaintiff must show that Defendants’ reason was a pretext for 

retaliation. Id. 

 As discussed with respect to his discrimination claim, Plaintiff did not suffer 

an adverse action based on his failure to report for work on the mandatory 

Saturday. Thus, he cannot make out a prima facie case of retaliation based on that 

incident. With respect to Plaintiff’s suspension, Defendants contend that he cannot 

establish a prima facie case of retaliation because there is no evidence that the 

relevant decision makers were aware of Plaintiff’s protected conduct. This Court 

agrees. 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 25 of 34 Pg ID 1293
26 

 As an initial matter, Plaintiff asserts in his response brief that he engaged in 

protected activity of which Defendants were aware, other than the filing of his 

EEOC complaints. (See Pl.’s Resp. Br. at Pg ID 677-78.) Specifically, Plaintiff 

refers the Court to Exhibits C, F, G, and H to his brief. Exhibit C is a June 1, 2012 

letter Plaintiff wrote to Cathy Clegg, GM’s Vice President of Labor Relations, in 

which Plaintiff claims that four individuals-- notably, no one named in the current 

lawsuit-- failed to accommodate Plaintiff’s work restrictions related to a back 

injury and were placing workers at risk by “creat[ing] a dangerous/hazardous work 

environment.”11 (Id., Ex. C at 3.) Plaintiff presents no evidence to suggest that the 

individuals who decided to suspend him a year and a half later were aware of this 

letter. Exhibit F is a letter Plaintiff wrote to Clegg and Joe Ashton, the UAW’s 

Vice President, dated December 13, 2013-- after his suspension. Similarly, Exhibit 

H is the grievance the UAW filed in response to Plaintiff’s suspension. Clearly, 

protected activity taken after the adverse action cannot be “a but-for cause of” or 

“significant factor in” the adverse action. Finally, Exhibit G is GM’s record of the 

notices given to Plaintiff and thus this exhibit in no way reflects protected activity 

by Plaintiff. This leaves Plaintiff’s November 4, 2013 EEOC Charge. 

 Plaintiff did not personally deliver the Charge to Defendants. At their 

depositions, Miller and Pepin indicated that they were unaware of the Charge prior 

 

11 The letter reflects that a copy was sent to Joe Ashton, the UAW’s Vice President. 

(Pl.’s Resp., Ex. C at 3.) 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 26 of 34 Pg ID 1294
27 

to this litigation. Plaintiff fails to identify any evidence in response to Defendants’ 

summary judgment motion to show that they-- or any other supervisor at Willow 

Run-- were aware of the Charge before Plaintiff’s suspension. Plaintiff does not 

present evidence reflecting when the management meeting occurred where 

Delinquency Little purportedly told Plaintiff his Charge was discussed. Plaintiff’s 

assertion that the relevant decision makers had to have been made aware of the 

Charge in order for GM to respond is based on pure speculation. The response, 

prepared by outside counsel for GM, in no way reflects that Miller, Pepin, or any 

other supervisor at Willow Run was consulted to prepare the document. In short, 

Plaintiff fails to show that the individuals who decided to suspend him were aware 

of his EEOC Charge. 

 Therefore, the Court finds that Plaintiff fails to create a genuine issue of 

material fact with respect to whether the individuals who made the decision to 

suspend him were aware of his protected activity. He therefore fails to 

demonstrate a prima facie case of retaliation under Title VII or ELCRA (Counts III 

and VII). 

 C. Hostile Work Environment/Constructive Discharge

 Plaintiff claims Defendants subjected him to a hostile work environment 

based on his race, which led to his constructive discharge in violation of Title VII 

and ELCRA. 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 27 of 34 Pg ID 1295
28 

 Discrimination so “severe or pervasive” as to “alter the conditions of [the 

victim’s] employment and create an abusive working environment” violates Title 

VII and ELCRA. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); 

Kalich v. AT & T Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012). To 

demonstrate a hostile work environment claim under either statute, the plaintiff 

must establish: (1) he is a member of a protected class; (2) he was subjected to 

unwelcome harassment; (3) the harassment was based on race; (4) the harassment 

was sufficiently severe or pervasive to alter the conditions of employment and 

create an abusive working environment; and (5) there exists some basis for liability 

on the part of the employer. Williams v. CSX Transp. Co., 643 F.3d 502, 511 (6th 

Cir. 2011); see also Haynie v. Michigan Dep’t of Police, 664 N.W.2d 129, 133 

(Mich. 2003). Where the plaintiff alleges constructive discharge, he must 

additionally show “working conditions so intolerable that a reasonable person 

would have felt compelled to resign.” Penn. State Police v. Suders, 542 U.S. 129, 

147 (2004). Defendants maintain that Plaintiff’s hostile work environmentconstructive discharge claim fails because he does not demonstrate that his work 

environment was permeated with severe or pervasive discriminatory harassment or 

that any harassment was based on his race. 

 Courts deciding whether the complained of conduct was sufficiently severe 

or pervasive to create a hostile work environment look at “ ‘the frequency of the 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 28 of 34 Pg ID 1296
29 

discriminatory conduct; its severity; whether it is physically threatening or 

humiliating, or a mere offensive utterance; and whether it unreasonably interferes 

with an employee’s work performance.’ ” Williams, 643 F.3d at 512. “ ‘[I]solated 

incidents (unless extremely serious) will not amount to discriminatory changes in 

the ‘terms and conditions of employment’ ” Id. (quoting Faragher v. City of Boca 

Raton, 524 U.S. 775, 778 (1998) (additional quotation marks omitted). 

“Occasional offensive utterances do not rise to the level required to create a hostile 

work environment.” Id. at 512-513. Plaintiff fails to demonstrate conduct by 

Defendants that a reasonable jury could find to be “sufficiently severe or pervasive 

to alter the conditions of his employment and create an abusive working 

environment.” Moreover, for the reasons discussed earlier, Plaintiff fails to show 

that any harassment was based on his race. 

 Therefore, Defendants are entitled to summary judgment on Plaintiff’s 

hostile work environment-constructive discharge claims (Counts VIII and IX). 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 29 of 34 Pg ID 1297
 D. Failure to Accommodate

 Plaintiff alleges Defendants violated the ADA by failing to accommodate his 

physical impairments. Defendants contend this claim is subject to dismissal 

because Plaintiff failed to exhaust his administrative remedies. 

 “Under the ADA, a claimant who wishes to bring a lawsuit claiming a 

violation of the ADA must file a charge of discrimination with the EEOC within 

300 days of the alleged discrimination.” Parry v. Mohawk Motors of Michigan, 

Inc., 236 F.3d 299, 309 (6th Cir. 2000) (citing 42 U.S.C. §§ 12117(a), 2000e5(e)(1) and Jones v. Sumser Ret. Vill., 209 F.3d 851, 853 (6th Cir. 2000)). A 

claimant may not file a lawsuit alleging an ADA violation unless he or she has 

received a right-to-sue letter from the EEOC because, until then, the claimant has 

not exhausted his or her remedies. Id. (citing 42 U.S.C. §§ 2000e-5(f)(1), 

12117(a)). Filing a charge of discrimination with the EEOC is a condition 

precedent to filing suit under the ADA. Id. However, this condition precedent is 

not jurisdictional and may be waived by the parties or the Court, such as where the 

plaintiff receives a right-to-sue letter after filing his or her complaint and while the 

lawsuit remains pending. Id. (citing Portis v. Ohio, 141 F.3d 632, 635 (6th Cir. 

1998)); see also Chandler v. Vulcan Materials Co., 81 F. App’x 538, 541 (6th Cir. 

2003) (waiving the exhaustion requirement where the plaintiff timely filed a charge 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 30 of 34 Pg ID 1298
31 

of discrimination with the EEOC after filing suit and there was no prejudice to the 

defendants). 

 The Sixth Circuit has held that to constitute a “charge” necessary to exhaust 

an employee’s administrative remedies, the document submitted to the EEOC must 

satisfy three requirements: 

[T]he filing (1) must be “verified”-- that is, submitted 

under oath or penalty of perjury, 29 C.F.R. § 1601; (2) 

must contain information that is “sufficiently precise to 

identify the parties, and to describe generally the action 

or practices complained of,” id. § 1601.12(b); and (3) 

must comply with [Federal Express Corporation v.] 

Holowecki-- that is, an “objective observer” must believe 

that the filing “taken as a whole” suggests that the 

employee “requests the agency to activate its machinery 

and remedial processes,” 552 U.S. 389, 398, 402 [2008]. 

Williams, 643 F.3d at 509. As the Sixth Circuit has explained, the requirement that 

a charge be “sufficiently precise to identify the parties, and to describe generally 

the action or practices complained of” serves two purposes: 

First, the requirement provides the basis for the EEOC’s 

“attempt to obtain voluntary compliance with the law.” 

Second, these attempts “notify potential defendants of the 

nature of the plaintiff’s claims and provide them the 

opportunity to settle the claims before the EEOC rather 

than litigate them.” 

Sumser Ret. Vill., 209 F.3d at 853 (quoting Abeita v. TransAmerica Mailings, Inc., 

159 F.3d 236, 254 (6th Cir. 1998)). To satisfy this requirement, the “complainant 

need not ‘attach the correct legal conclusion’ to allegations in the charge, ‘conform 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 31 of 34 Pg ID 1299
32 

to legal technicalities,’ or use ‘the exact wording which might be required in a 

judicial pleading.’ ” Id. (quoting Davis v. Sodexho, 157 F.3d 460, 463 (6th Cir. 

1998)). Nevertheless, a plaintiff is not “excused from filing charges on a particular 

discrimination claim before suing in federal court.” Id. “The claim must grow out 

of the investigation or the facts alleged in the charge must be sufficiently related to 

the claim such that those facts would prompt an investigation of the claim.” Id. 

 Plaintiff does not mention a disability, disability discrimination, or the 

failure to accommodate a disability in either of the complaints he filed with the 

EEOC. (See Pl.’s Resp., Ex. E at Pg ID 698, 701.) Plaintiff nevertheless contends 

that he exhausted his ADA claim because he stated in his second EEOC Charge 

that he was suspended on December 12, 2013, “after taking a day off due to 

medical reasons” (see id. at Pg ID 701), and mentioned the ADA in his request for 

reconsideration.12 Plaintiff’s statement that he was away from work for “medical 

reasons” (which could mean many things besides a disability) and reference to the 

ADA, without more, would not prompt (and did not prompt) the EEOC to 

investigate a claim for disability discrimination or failure to accommodate a 

disability. 

 

12 In his response brief, Plaintiff also states that his second Charge lists the 

medications he takes, which he believes would reflect that he suffers from a 

disability. (See Pl.’s Resp. Br. at Pg ID 682.) No medications are listed in either 

Plaintiff’s first or second EEOC complaints, however. (See Pl.’s Resp., Ex. E at 

Pg ID 698, 701.) 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 32 of 34 Pg ID 1300
33 

 The Court therefore holds that Plaintiff failed to exhaust his administrative 

remedies with respect to his ADA claim. Defendants clearly are not waiving this 

precondition to filing suit, and there are no circumstances in this case to justify the 

Court’s waiver of the requirement. Defendants, therefore, are entitled to summary 

judgment with respect to Plaintiff’s ADA claim (Count X). 

E. Intentional Infliction of Emotional Distress

 Plaintiff alleges that Defendants’ actions and conduct were extreme and 

outrageous and caused him severe emotional distress. 

 Under Michigan law, a “complainant must produce evidence of extreme and 

outrageous conduct, of the actor’s injurious intent or reckless disregard for the 

consequences of his acts, of causation, and of the actual experience of severe 

distress before his case will be submitted to a jury.” Ross v. Burns, 612 F.2d 271, 

273 (6th Cir. 1980) (additional quotation marks omitted). To qualify as extreme 

and outrageous behavior, the defendant’s conduct must be “so outrageous in 

character, and so extreme in degree, as to go beyond all possible bounds of 

decency, and to be regarded as atrocious, and utterly intolerable in a civilized 

community.” Roberts v. Auto-Owners Ins. Co., 374 N.W.2d 905, 908-09 (Mich. 

1985). Plaintiff fails to show (or even allege) conduct that meets this threshold. 

 The Court therefore is granting summary judgment to Defendants on 

Plaintiff’s intentional infliction of emotional distress claim (Count XI). 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 33 of 34 Pg ID 1301
34 

IV. Conclusion

 For the reasons set forth above, the Court finds that Plaintiff fails to present 

evidence to sustain his burdens of proof with respect to his claims alleging race or 

religious discrimination, retaliation, hostile work environment-constructive 

discharge, or intentional infliction of emotional distress. Plaintiff failed to exhaust 

his administrative remedies with respect to his ADA claim. 

 Accordingly, 

IT IS ORDERED, that Defendants’ Motion for Summary Judgment (ECF 

No. 27) is GRANTED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: September 14, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, September 14, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

4:14-cv-14491-LVP-MJH Doc # 37 Filed 09/14/16 Pg 34 of 34 Pg ID 1302