UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

WINSTON SHINES, 

Plaintiff, 

v. 

WAYNE STATE UNIVERSITY, 

A Michigan Corporation, 

Defendant. 

Case No: 15-cv-11599 

Hon. Gershwin A. Drain 

Lance W. Mason (P43926) 

LANCE W. MASON, P.C. 

Attorneys for Plaintiff 

615 Griswold, Suite 901 

Detroit, Michigan 48226-3894 

(313) 967-9016 (office) 

(313) 964-4789 (facsimile) 

lancewmason@yahoo.com 

Elizabeth P. Hardy (P37426) 

Thomas J. Davis (P78626) 

KIENBAUM OPPERWALL HARDY 

& PELTON, P.L.C. 

Attorneys for Defendant 

280 North Old Woodward Avenue 

Suite 400 

Birmingham, Michigan 48009 

(248) 645-0000 

(248) 645-1385 (facsimile) 

ehardy@kohp.com

tdavis@kohp.com

______________________________________________________________________________ 

DEFENDANT’S REPLY IN SUPPORT OF ITS 

MOTION FOR SUMMARY JUDGMENT 

______________________________________________________________________________ 

Case 2:15-cv-11599-GAD-SDD ECF No. 26, PageID.535 Filed 07/26/16 Page 1 of 9
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Plaintiff Winston Shines fails to raise a genuine issue of material fact 

regarding any of his claims, and summary judgment should be entered in favor of 

Defendant Wayne State University. 

A. Plaintiff Fails To Establish a Prima Facie Case of Discrimination Or 

Show That Wayne State’s Legitimate Reason for his Discharge Was A 

Pretext for Gender Discrimination. 

With respect to proof of a prima facie case, Plaintiff no longer compares 

himself to the male associate vice president he claimed was not terminated after a 

harassment investigation - apparently recognizing that comparison of himself to 

another male could not possibly show gender discrimination. Rather, he now 

claims that he was treated differently from AT because (1) she was not suspended 

or investigated after Plaintiff told the investigator that AT attempted to solicit a 

kiss from him, and (2) Mr. Lessem never spoke to Plaintiff about AT’s complaints, 

but did speak to AT. Dkt. 22, Pl. Resp. at 9. 

His arguments are without merit. First, Plaintiff and AT were not similarly 

situated because AT made a complaint about Plaintiff through the normal channels, 

whereas Plaintiff only mentioned AT’s supposed actions defensively, in the 

context of being questioned about AT’s complaint.1

 

 

1

 Plaintiff and AT were not similarly situated for other reasons as well, including 

that (1) Plaintiff was a full-time employee in the OEO who was twice AT’s age 

and supervised her part-time work study and (2) an investigation found that AT 

was more credible than Plaintiff. 

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The argument that Mr. Lessem talked to AT regarding her complaint, but he 

did not talk to Plaintiff, also does not set forth a prima facie case of gender 

discrimination. Pl. Resp. at 9. Mr. Lessem spoke to AT to determine whether the 

situation she reported should be investigated – he did not talk to her as part of the 

investigation. Dkt. 19, Tab A, Lessem Dep. 20-21, 23. Mr. Lessem only assessed 

AT’s credibility in the context of whether it was necessary to have a full 

investigation. Id. at 23.2

 Once Mr. Lessem determined that an investigation 

should occur, he turned the matter over to an outside investigator. It is also 

undisputed that Mr. Lessem’s decision to terminate Plaintiff was made 

“overwhelmingly based on the report” of the investigator and not his brief 

conversation with AT when he was determining whether an investigation was 

necessary. Id. at 15. 

Finally, Mr. Lessem did not consider Plaintiff’s statement to the investigator 

as a complaint. Plaintiff had worked in the OEO for a period of time and knew 

how to lodge a complaint if that was his intent. Id.at 35-36. For all of these 

 

2 In that context, Mr. Lessem found AT credible because (1) her report to him was 

consistent with what she had previously told the OEO Director; (2) if she were 

making up a story, he would have expected a more dramatic lie, not just an 

attempted kiss on the lips; and (3) there was no indication that AT was trying to get 

money or anything else out of reporting the conduct. Lessem Dep. at 22-25. If 

Mr. Lessem had considered AT’s statement to him to be an investigation or have 

dispositive significance, he could have terminated Plaintiff after speaking to her. 

Instead, he hired an outside investigator and Plaintiff was placed on paid 

suspension until the investigation was complete. 

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reasons, Plaintiff cannot establish a prima facie case of discrimination through 

comparison of his treatment to that of AT. 

Plaintiff also does not raise a fact issue regarding whether Wayne State’s 

legitimate reason for his termination was a pretext for gender discrimination. First, 

he argues that he did not engage in the conduct for which he was discharged. Pl. 

Resp. at 11. Mere denial of the conduct leading to discharge cannot defeat a 

motion for summary judgment on the issue of pretext. See cases cited in Dkt. 19, 

Def. Br. at 11-12. 

Second, Plaintiff again condemns the investigation and decision-making 

process, arguing that the fact that Mr. Lessem did not speak with him shows 

pretext. Pl. Resp. at 11. However, this criticism does not demonstrate that 

Mr. Lessem lacked an honest belief in the nondiscriminatory reason for the 

termination, and, thus, does not show pretext. See cases cited in Def. Br. at 12-13. 

See also Younger v. Ingersoll-Rand Co., No. 1:10-CV-849, 2013 WL 5467763, at 

*18 (S.D. Ohio Sept. 30, 2013) (granting summary judgement on race 

discrimination claim, criticism of employer’s investigation for not interviewing 

witnesses identified by plaintiff “is not sufficient to demonstrate pretext. If 

anything, that evidence might show that [the employer’s] investigational methods 

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are less than perfect.”).3 In any event, it is undisputed that Mr. Lessem’s decision 

was based on the investigator’s report, and the investigator had spoken to Plaintiff. 

Lessem Dep. at 38. Plaintiff’s statements and credibility – or lack thereof – in fact 

were considered. Plaintiff fails to establish an issue of fact as to whether Wayne 

State’s legitimate, non-discriminatory reason for his termination was a pretext to 

get rid of him because he is a male.4

B. Plaintiff Does Not Establish Severe and Pervasive Harassment Based on 

Gender or Sex 

 

3

 Plaintiff criticizes Wayne State for hiring a law firm that it had used before to 

perform the investigation. Pl. Resp. at 3. Even if this meant that the investigator 

was biased in favor of Wayne State, that does not lead to the conclusion that the 

investigator was biased against Plaintiff. If the investigator were biased in favor of 

Wayne State, it would be equally, or perhaps more likely, that the investigator 

would be biased against the person who complained, AT, not against the alleged 

harasser, Plaintiff. There is no evidence in the record that the investigator was 

biased in any way. Mr. Lessem believed the investigation was done in an 

independent manner and he noted that the law firm that investigated the matter is 

“one of the most widely respected firms in Michigan in this area.” Lessem Dep. at 

43-44. 

4 Plaintiff asserts that the University’s Discrimination and Harassment Complaint 

Process was not followed, but he does not say how the process was not followed. 

Pl. Resp. at 2. This does not establish pretext either. Plaintiff also claims that 

Defendant did not consider AT’s concerns about job security as a possible motive 

for her complaint. Pl. Resp. at 11. However, Wayne State had no reason to 

believe that AT was concerned about her job security, and there is no evidence in 

the record that AT had such a concern. The question regarding AT’s position was 

how much of the funding for her position would come from the departmental 

budget and how much would be funded through financial aid work study – not 

whether she would have a job. Lessem Dep. at 29, 51-53; Pl. Resp. at 3.

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The allegations that Plaintiff asserts are sexual harassment, even if true, do 

not constitute a hostile work environment. His Response claims that (1) AT asked 

for a kiss, (2) Plaintiff was “badgered” about having sex with another employee, 

(3) Plaintiff was “stalked” by AT at a restaurant, and (4) Plaintiff was followed on 

social media by OEO investigator Tommy Martin and/or AT. Pl. Resp. at 12. The 

coincidental appearance of AT at a restaurant and the following of Plaintiff on 

social media simply do not constitute harassing conduct based on sex or gender. 

These are everyday occurrences that are not in the least bit inappropriate, let alone 

inappropriate on the basis of gender. 

Nor are the other two allegations severe and pervasive conduct based on sex. 

Plaintiff testified that one co-worker asked if he was in a relationship with an 

individual who came in to the OEO and AT asked if the individual was his wife, as 

her name sounded like “Della Shines.” TR at 81-91. These questions and the 

supposed request for a kiss on the cheek occurred on a single day, about 30 

minutes apart. TR at 90. The two occurrences did not permeate the work 

environment, and they were not severe in terms of their content. No touching, 

sexual propositions, indecent exposure or obscenities were alleged. Plaintiff’s 

sexual harassment claim is utterly frivolous. 

C. Plaintiff’s Retaliation Claim Cannot Survive Summary Judgment 

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Plaintiff now states that his protected activity was not the EEOC charge, but 

telling the investigator during the interview that AT offered her cheek for a kiss, 

AT and Mr. Martin teased him about being in a relationship with another 

employee, and AT and/or Mr. Martin looked at his LinkedIn page. Pl. Resp. at 13. 

This argument fails. Even if what Plaintiff said in the interview could be 

considered a complaint, a complaint is only protected opposition under Title VII 

where plaintiff has “‘a reasonable . . . belief that the opposed practices were 

unlawful.’” EEOC v. Rocket Enters., 2008 WL 724613, at *4 (E.D. Mich. Mar. 

18, 2008), quoting Johnson v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir. 

2000). See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) 

(plaintiff did not engage in protected activity because a reasonable person could 

not believe the conduct of which she complained – one sexually explicit comment 

in a meeting with two males – constituted a hostile work environment). A 

reasonable person would not have thought that a report to the investigator about a 

student-employee putting her cheek up for a kiss, being teased once about being in 

a relationship, and someone looking at his public LinkedIn profile was a report of 

unlawful practices. 

In any event, there is no basis in the record for a finding that the abovereferenced statements by Plaintiff to the investigator were a factor in Mr. Lessem’s 

decision to terminate Plaintiff. Further, for the reasons set forth above at pages 3-

Case 2:15-cv-11599-GAD-SDD ECF No. 26, PageID.541 Filed 07/26/16 Page 7 of 9
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4, Plaintiff has not shown that Mr. Lessem’s reason for terminating his 

employment was a pretext for retaliation. 

D. The Title VII Allegations That Were Not Included in Plaintiff’s EEOC 

Charge Must Be Dismissed. 

The only allegation contained in Plaintiff’s EEOC Charge concerned 

improper comments of a sexual nature by his co-workers. TR 135, Ex. 15. 

Plaintiff cannot, and does not, dispute this. Nor does he dispute the legal 

proposition that in order to pursue an allegation in federal court through a Title VII 

claim, a plaintiff must raise such allegation in charge with the EEOC. See Def. Br. 

at 22. Thus, Plaintiff’s Title VII allegations of (1) retaliation (2) discrimination 

and (3) harassment allegations that AT attempted to solicit a kiss, his co-worker 

looked at his LinkedIn profile, and that AT appeared at the restaurant where he was 

being interviewed must be dismissed for failure to exhaust the EEOC process. 

 Respectfully submitted, 

KIENBAUM OPPERWALL 

 HARDY & PELTON, P.L.C. 

By: /s/Elizabeth P. Hardy 

 Elizabeth P. Hardy (P37426) 

 Thomas J. Davis (P78626) 

Attorneys for Defendant 

280 N. Old Woodward Avenue, Suite 400 

Birmingham, MI 48009 

(248) 645-0000 

ehardy@kohp.com

Dated: July 26, 2016 tdavis@kohp.com 

Case 2:15-cv-11599-GAD-SDD ECF No. 26, PageID.542 Filed 07/26/16 Page 8 of 9
CERTIFICATE OF SERVICE 

 I hereby certify that on July 26, 2016, I electronically filed the foregoing 

document with the Clerk of the Court using the ECF system which will send 

notification of such filing to all parties on record, and I hereby certify that I have 

caused to be served via U.S. mail the foregoing document to the following nonECF participants: 

 (no manual recipients) 

/s/Elizabeth P. Hardy 

Kienbaum Opperwall Hardy & Pelton, 

P.L.C. 

280 N. Old Woodward Avenue, Suite 400 

Birmingham, MI 48009 

(248) 645-0000 

ehardy@kohp.com 

(P37426)

256281 

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