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### STATE OF MICHIGAN

COURT OF APPEALS

DARRELL WATZ and KAY WATZ,

Plaintiffs-Appellees, UNPUBLISHED May 14, 2015

v No. 320883 Macomb Circuit CourtWAL-MART STORES EAST, LP, d/b/a WALMART SUPERCENTER, and THERESA LEDBETTER, LC No. 2012-000385-CD

Defendants-Appellant, and

DEBBIE BORST,

Defendant.

Before: T ALBOT , C.J., and C AVANAGH and M ETER , JJ.

P ER C URIAM

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Defendants Wal-Mart Stores East , LP, d/b/a Wal-Mart Supercente r (Walmart), and Theresa Ledbetter appeal by leav ed granted an order denying the ir motion for summary disposition in this employment-dispute case. We reverse and re mand for entry of judgment in favor of defendants.

Plaintiff Darrell Watz 1 began working for Walmart in 1999. In 2007, plaintiff transfe rred to Walmart’s store 3487 in Shelby Township. Since 2009, plaint iff has worked as an assistant manager at store 3487, where defendant Debbie Borst works as th e store manager. Defendant Theresa Ledbetter worked as a shift manager at store 3487 and w as plaintiff’s supervisor from February 3, 2011, until February 11, 2012, when she was transfe rred to another store.

1 Because plaintiff Kay Watz’s claim is derivative of Darrell Wa tz’s, this opinion’s use of the term “plaintiff” refers to Darrell Watz only.-2- Plaintiff has had cerebral pal sy since birth. It affects his coordination, ability to write legibly, speech patterns, and gait. He filed this lawsuit agai nst Walmart, Ledbetter, and Borst alleging intentional infliction of emotional distress (IIED) an d a hostile work environment based on disability harassment contrary to the Persons With Disabilit ies Civil Rights Act, MCL 37.1101 et seq . Plaintiff has since withdrawn his claims against Borst. Thi s appeal concerns plaintiff’s claims against Ledbe tter and against Walmart on a r espondeat superior theory. 2 Plaintiff alleged th at, because of his d isability, Ledbetter ye lled at him and badgered him, refused to give him earned days off, prevented him from performing his job, and removed personnel from his department.

Defendants moved for summary disposition pursuant to MCR 2.116 (C)(10), arguing, in part, that Ledbetter’s conduct a nd communications directed towa rd plaintiff were not based on his disability. They also argue d that Walmart immediately inve stigated the alleged harassment after plaintiff notified Walmart of his allegations. They furt her argued that pla intiff’s IIED claim was not actionable because the exclusive remedy provision (see MCL 418.131) of the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq ., barred the claim and because Ledbetter’s conduct was not suffi ciently extreme or outrageous to support the claim.

The documentary evidence shows that plaintiff had performance problems at work. The problems included failing to plan for and execute daily tasks, special events, retail displays, and promotions, failing to review internal emails that explained ev ents and promotions, failing to delegate tasks, failing to understand Walmart programs, failing to train subordinates, and failing to respond to associate questions. Plaintiff received several “coachings,” which are written statements describing his performance, what was expected of him , and his action plan to prevent the problem from recurring. The coachings involved failing to lock an ammunition safe after helping a customer, failing to plan for the midnight release of the video game “Call of Duty Modern Warfare,” and failing to r emove expired produce from she lves.

The evidence also showed that Ledbetter frequently yelled at p laintiff or talked to him inappropriately, sometimes in the presence of customers and ass ociates or by using a walkietalkie. She told plaintiff th at he did a dumb or stupid thing when she disagreed with his approach to a workplace issue or when he had made a mistake. Plaintiff also testified that Ledbetter transferred employees out of plaintiff’s department, which made it more difficult for him to complete his work, that she gave him inconsistent assignments, that she ignored him, that she interfered with his hiring and scheduling processes, and that s he micromanaged his work. Further, plaintiff claimed that on one occasion, Borst and Ledb etter brought him to the manager’s office and told him that someone had reported that he smelled like urine. They allegedly told him to get new cl othes or cologne to cover up th e smell.

According to Borst, she received complaints regarding Ledbette r’s general management style from employees other than plaintiff. Borst issued two wr itten coachings to Ledbetter for her failure to show consistent respect to members of management . Both coachings involved

2 Because plaintiff dismissed his claims against Borst, this opi nion’s use of the term “defendants” refers to W almart and Ledbetter only.-3- Ledbetter’s tone of voice in dealing with members of management . Sheryl Anderson testified that Ledbetter treated employees o ther than plaintiff, includin g Anderson, in a manner similar to the way she treated plaintiff, but she also stated that “[Ledbe tter] was harder on [plaintiff]. She was always on his case.” Monica Mikkelson testified that Ledbe tter yelled at employees other than plaintiff, that Ledbetter had a direct and demanding manag ement style, and that Ledbetter angered easily and was abrasive a nd blunt. Mikkelson also test ified that Ledbetter treated other associates consistent with the manner in which she treated plai ntiff. Marie Dell testified that employees other than plaintiff complained about Ledbetter. She claimed that “[t]he midnight shift complained a lot about [ Ledbetter]. They had some big is sues with her.”

In the summer of 2011, Mary Romska and other zone merchandise supervisors had a meeting with Jim Pesta, a Walmart human resources manager, rega rding Ledbetter’s treatment of associates, in particular a woma n named “Mandy” and plaintiff. Romska testified that the subject of plaintiff’s cerebral palsy was not mentioned at the meeting. According to Pesta, the zone merchandise supervisors complained about the manner in whi ch Ledbetter treated associates in general and did not indicate that Ledbetter treat ed plaintiff worse than other associates. Pesta also averre d that nobody mentioned plaintiff ’s disability during the meeting and nobody indicated that Ledbetter was being disrespectful tow ard plaintiff because of his disability. Pesta inve stigated the complaint by listening to h ow Ledbetter talked to employees on her walkie-talkie. He observed that she assumed a disrespectfu l tone with most of the assistant managers, but averred that nothi ng indicated that she treated p laintiff differently than most other assistant managers. Pesta’s inve stigation prompted Borst’s sec ond coaching to Ledbetter.

On November 25, 2011, plaintiff’s lawyer sent a letter to Walm art’s office of general counsel stating that plaintiff was being harassed because of hi s disability. Pesta investigated the matter. Pesta averred that before plaintiff’s attorney sent th e letter, nobody had told him that Ledbetter singled plaintiff out for mistreatment or treated him worse than other employees. Pesta investigated the matter by interviewing plaintiff, Ledbet ter, Borst, and Romska. Pesta concluded that plaintiff’s allega tions of disability harassment were not substantiated, but Ledbetter was nonethele ss transferred to a different store in p art to address plaintiff’s and other associates’ complaints about her management style.

The trial court denied defendants’ motion for summary disposit ion. The court determined that plaintiff had presented evidence from which a j ury could conclude that he was treated disparately and that the treatment he received created an intimidating, hostile, and offensive work environment. The court determined that Walmart had notice of Ledbetter’s treatment of plaintiff in the summer of 2011 when the zone merc handise supervisors met with Pesta to complain about Ledbetter ’s treatment of employees. Fu rther, the court determined that reasonable minds could differ regarding whether Ledbetter’s tre atment of plaintiff was sufficiently extreme to support his IIED claim.

This Court reviews de novo a tr ial court’s decision concerning a motion for summary disposition under MCR 2.116(C)(10). Lakeview Commons v Empower Yourself, LLC , 290 Mich App 503, 506; 802 NW2d 712 (2010). “A motion brought pursuant to MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim, and is reviewed by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party.” Id . “Summary disposition is pr oper if there is no genuine issue regarding-4- any material fact and the moving party is entitled to judgment as a matter of law.” Id . (quotation marks and citation omitted).

Defendants argue that plainti ff cannot establish that Ledbette r’s conduct or communications were ba sed on his disability.

“[A] hostile work environment claim is actionable when the wor k environment is so tainted that, in the totality of the circumstances, a reasonabl e person in the plaintiff’s position would have perceived the conduct at issue as substantially inte rfering with employment or having the purpose or effect of creating an intimidating, hosti le, or offensive employment environment.” Radtke v Everett , 442 Mich 368, 372; 501 NW2d 155 (1993).

In order to establish a prima f acie case of hostile work envir onment, a plaintiff must prove: (1) the em ployee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of the protected status; (3) the employee was subjected to unwelcome c onduct or communication on the basis of the protected status; (4) the unw elcome conduct or communication was intended to, or in fact did, interfere substa ntially with the employee’s employment or created an intimidating, hostile, or o ffensive work environment; and (5) respondeat superior. [ Downey v Charlevoix Co Bd of Rd Comm’rs , 227 Mich App 621, 629; 576 NW2d 712 (1998).]

In Corley v Detroit Bd of Ed , 470 Mich 274, 279-280; 681 NW2d 342 (2004), the Michigan Supreme Court recognized that in order to establish a hostile w ork environment claim based on sexual harassment, the conduct or communications complained of must have been sexual in nature. Thus, by analogy, in ord er for plaintiff to establish a hostile work environment claim based on his disability, he was r equired to present evidence th at the conduct and communications on which he relied to establish h is claim pertained to his disa bility.

The evidence showed that Ledbetter had a difficult management style and had received coachings regarding her management style because employees othe r than plaintiff had complained about her. Employees Anderson and Mikkelson testifi ed that Ledbetter treated other employees in a manner consistent with the way she treated plain tiff. Anderson also testified that “[Ledbetter] was harder on [plaintiff]. She was always on his case.” No evidence, however, indicated that Ledbetter’s treatment of plaintiff was based on his disability . In this regard, plaintiff testified:

Q. Okay. Do you have any reason to believe that her calling you dumb was motivated by something other than being angry that you made a mistake?

A. I believe she had it in her mind that I was worthless because of the handicap.

Q. Did she say or do anything t hat made you believe that?

A. She never said anything, excep t the way she treated me.-5- * * *

Q. Do you have any reason to believe that [Ledbetter’s] outburst towards you was motivated by something ot her than being angry about you r mistakes?

[ PLAINTIFF’S COUNSEL ]: Objection. That’s asked and answered a whole bunch of times. Come on. Pl ease go into a new question.

A. Yeah. I said she—I believe she was motivated by the handicap . I believe that. How many tim es do I have to tell you?

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Q. Did Ms. Ledbetter ever say anything to you that you believe w as a derogatory statement towards your handicap?

A. I thought I told you that. No.

Q. I’m sorry. What?

A. I thought I said two or three times no.

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Q. Is it possible that [Ledbetter] was micromanaging you because you were making mistakes at work?

A. Okay. If she was, if that is the case, it still don’t give h er the right to talk to me the way she did and treated me the way she did.

Q. But do you agree that in terms of micromanaging, that she may be was being overly controlling of your work because you were making m istakes; is that possible?

A. That’s possible, yeah. Anything is possible.

At another point in his depositi on, plaintiff stated “[n]o” whe n asked if he had “any basis for [his] belief that [Ledbetter] wa s motivated by [his] handicap.” Thus, although plaintiff may have subjectively believed that Ledbetter’s poor treatment o f him was based on his disabi lity, the documentary evidence provides no basis for a substantiation of that belief. See Marsh v Dep’t of Civil Service , 173 Mich App 72, 81; 433 NW2d 820 (1988) (a plaintiff’s perso nal belief that actions were based on discriminatio n is insufficient to establi sh discrimination).

Plaintiff contends on appeal t hat his being called “dumb” and “stupid” was evidence of discrimination when viewed in light of the fact that he has cer ebral palsy. We cannot agree with-6- this inference when plaintiff himself does not allege that he h as a cognitive disability. 3 The words, while inappropriate, fit in with Ledbetter’s generally a brasive management style. Plaintiff also contends that his testimony that Ledbetter faile d to acknowledge him when he began to speak to her was also evidence of discrimination. We fail to see how this alleged treatment established disability-based discrimination. Finally , plaintiff contends that the fact that Ledbetter treated him worse than other employees was evidence o f discrimination. However, plaintiff himself acknowledged that his poor treatment by Ledbe tter may have been a result of his work mistakes; there is simply no evidence indicating that the treatment was related to plaintiff’s disability.

Defendants also argue that Walmart took prompt remedial action when it learned of possible harassment. In order to establish a respondeat superi or hostile work environment claim against an employer, a plaintiff must show that the employer fa iled to take prompt and adequate remedial action after having b een provided reasonable notice of the harassment, even if the harassment was committed by a supervisor. Chambers v Trettco
, Inc , 463 Mich 297, 315-316; 614 NW2d 910 (2000). An employer has notice of harassment wher e, under an objective standard, the totality of the circumstances indicate that a rea sonable employer would have been aware of the probability that the harassment was occurring. Id . at 319. “[T]he relevant inquiry concerning the adequacy of the employer’s remedial action is wh ether the action reasonably served to prevent future hara ssment of the plaintiff.” Id

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To establish that Walmart had notice of Ledbetter’s treatment of plaintiff, plaintiff relies on the meeting that Mary Romska and other zone merchandise supe rvisors had with Jim Pesta in the summer of 2011. As noted above, however, the evidence rega rding this meeting failed to show that plaintiff’s disabili ty was a factor in Ledbetter’s co nduct. Pesta averred that plaintiff’s disability was not discussed dur ing the meeting and nobody indi cated that Ledbetter had been disrespectful toward plaintiff because of his disability. He i nvestigated the matter and determined that Ledbetter often assumed a disrespectful tone bu t did not treat pla intiff differently than most other assistant managers.

The zone merchandise supervisors’ general complaint about Ledb etter’s treatment of plaintiff and “Mandy” did not provide Walmart with actual or co nstructive notice that Ledbetter had purportedly harassed plaintiff on the basis of his disabili ty. 4 As noted, on November 25, 2011, plaintiff’s lawyer sent a letter to Walmart’s office of g eneral counsel stating that plaintiff was being harassed because of hi s disability. Pesta investigat ed the matter, and even though he concluded that plaintiff’s allegations of disability harassment were not substantiated, Ledbetter was nonetheless transferred to a different store approximately a month after the completion of the investigation. We find no res pondeat superior liability un der these circumstances.

3 Plaintiff states that he “has extreme trouble verbally communi cating his thoughts and is very difficult to understand,” but he does not allege cognitive defi cits.

4 Nor, contrary to plaintiff’s su ggestion, did the “pervasive” f acts in this case provide constructive notice of disa bility-based harassment.-7- Defendants next argue that the IIED claim must be dismissed. We note, initially, that plaintiff withdrew his claim of IIED against Walmart but conten ds that the claim is viable against Ledbetter. We disagree. MCL 418.131, the exclusive r emedy provision of the WDCA, provides, in relevant part:

(1) The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive rem edy is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employe r specifically intended an injury. An employer shall be deemed to have intend ed to injure if the employer had actual knowledge tha t an injury was certain to occ ur and willfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court.

It cannot be seriously argued th at Ledbetter “specifically inte nded an injury” and “had actual knowledge that an injury was certain to occur and willfully dis regarded that knowledge.” Plaintiff implicitly suggests that the language of MCL 418.131 is inapplicable in his individual claim against Ledbetter (as opposed to the dismissed claim agai nst Walmart). However, even if we disregard the specific st atutory language in MCL 418.131, pl aintiff has not shown conduct “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 intolerab le in a civilized community.” Roberts v Auto-Owners Ins Co , 422 Mich 594, 603; 374 NW2d 905 (1985) (quotation marks and citation omitted).

Reversed and remanded for entry of judgment in favor of defend ants. We do not retain jurisdiction.

/s/ Michael J. Talbot /s/ Mark J. Cavanagh /s/ Patrick M. Meter