NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0258n.06 No. 10-2512 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
DI ANNE K EAN, Plaintiff-Appellant,

v. I T-WORKS, I

NC., Def endant- Appellee , HC5, L L C, Def endant- Appellee
. ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : MARTI

N, SUTTON a

nd BA L DOCK, Circuit J udg es. * SUTTON, Circuit J udg e. After Dianne Kea n was fired from her job as a massag e thera pist, she sued her employ ers under Title VI I and Michig an law, alleg ing that a coll eag ue’s sexual comments had cre ated a hostile work environment and that s h e wa s fi red in reta liation for complaining about it. The district court g rante d summary judgme nt to her employ ers beca use Kea n failed to show a

hostile work environme nt or reta liation. W e af firm.

The Honor able B obby

R. Baldoc k, United States Court of Appea ls for the Te nth Circuit, * sitti ng by desig nation.No. 10-2512

Kean v. It- W

orks, Inc ., et al. I
. Dianne Kea

n beg an working as a massag e thera pist at I T-Works in 2005. I n J anuar y 2007, her supervisor, Kathy Emmett, g ave Kea n a “g ood” evalua

tion (ave rag ing betwee n two and three on
a scale of one to five), but noted that she neede d to “red u ce [ h er ] neg ativity ” and incre ase her listening skills. R. 38-5 at 3.
I n Au gu s t or September of that y ear , another thera pist, Dave Roer, beg an working in the office
. Roer told e x plicit sex ual jokes around customers and the other thera pists, prompting Kea

n to complain to Emmett. I n October , afte r Roer’s crude comments continued, Kea n and sever al other fema le employ ees met with Emmett and one of I T-Works’s owner s , Marg are t Kammer er, to complain about Roer. I n a meeting about her November perf ormanc e revie w, Kea

n told Emmett that if I T-Works did not do something about Roer ’s conduc t, she would file a c ivil rights complaint.
I n response to these conce rns, Marg are t Kammer er and her husband, J ames Kammer er, eac h spoke sepa

rate ly with Roer, telling him to “knoc k it off and . . . ke ep it profe ssional.” R. 38-10 at 6; R. 38-8 at 4. After they told him to st op, neither of the Kammer ers he ard a

ny more complaints about Roer.
Kea n’s November perf

ormanc e evalua tion, meanwhile, went well. Emmett g ave her a “ver y g ood” rating , and noted that she “conduc ts herse lf w[it h] a chee rful/positive manner .” R. 45-7 at 3. She also g ave K ean a

7% merit-ba sed pay

raise.

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Kean v. It- W

orks, Inc ., et al. By J anuar y 2008, howeve r, things had soured. Emmett told Kea n that the Kammer ers wer e having financ ial difficulties that might jeo p ar d i z e the company ’s ability to pay bonuses or make pay roll. Kea n also rec eived an invoice for overdue rent for the company ’s building, which the landlord asked her to deliver to the Kammer ers. Kea n told another massag e thera pis t ab o u t I TWorks’ financ ial problems. On J anuar y 21, J ames Kammer er fired Kea n due to her g ossiping about I T-Works’s financ ial situation, as well as “ey e rolling at the supervisor,” “showing v er y p o o r judgme nt and lousy

appre ciation for the job.” R. 42-6 at 12.
Kea n sued I T-Works as we ll as HC-5, the org anization that processe d her pa y chec ks. She alleg ed that Roer’s offe nsive comments had cre ated a hostile work environment in violation of Title VI I and Michig an’s Elliott -L arse n Civil Rights Act, an d that I T-Works fired her in reta liation for complaining about his conduct, also in violation of the two statutes. The district court g rante d summary judgme nt to both de fenda nts. I t he ld tha t H C-5 had no notice of the alleg ed hara ssment, that Kea n’s inability to r eca ll any of Roer’s specific comments made it impossibl e for her to pr ove
a hostile work env i ro n m en t , and that she had not introduced sufficie nt evidenc e to show that her complaints motivated I T-Works’s dec ision to fire her.
I I
. Hostile W

ork Environme nt. To hold an employ er liable for sexual ha rassment cause d by

a
cowor ker, a plaintiff must show that: (1) she was a member of a protec ted gro u p ; (2) unwelcome hara ssment occur

red; (3) t he hara ssment was based on sex; (4) the hara ssment “unre asonably
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Kean v. It- W

orks, Inc ., et al. interfe red with the plaintiff’s work perf ormanc e or cre ated a hostile or offe nsive work environment that was seve re a

nd perva sive”; and ( 5) “the employ er kne w or should ha ve known of

the cha rg ed sexual hara ssment and failed unrea sonably to take prompt an d ap p ropriate corr ective action.” Fenton v. H

iSAN, Inc. , 174 F.3d 827, 829–30 ( 6th Cir. 1999).
Kea n cannot meet at least two of these require ments. First, she cannot reme mber any thing about Roer’s comments other than that they “re fer [red] to women’s brea sts and women’s g enitalia,”
as well as Roer’s three ex-wives. See R. 51-2 at 23–26. Even if we infer that Roer’s comments wer e crude and unprofe ssional, as is appropr iate at this stag e of the litigation, that does not suffice to take the claim to a jury
. Wit hout more specific ity ab o u t t h e n at u re of the comments, a jury could not deter mine that Roer’s hara ssment “cr eate d a hostile or offe nsive work environment that was sever e and per vasive.” Fenton , 174 F.3d a t 830.
Kea n, for example, doe s not sa y that Roer direc ted any of his comments toward her, which itself weig hs ag ainst a hostile work environment finding
. See Black v. Zaring Homes, Inc. , 104 F.3d 822, 82 6 (6 t h C i r. 1997). She does not say that the hara ssment interfe red with her work perf ormanc e. To the contra

ry , her perf

ormanc e evalua

tions improved from J an u ar y 2007 (whe n Roer was not working at I T-Works) to November 2007 (whe n she made her final complaint about his comments). She does not say how frequently Roer made his comments, which would make it impossibl e for the jury

to determine w hether

they wer e “pe rvasive.” And without a m ore specific descr iption of the comments, the jury could not deter mine whether the words went bey ond the “mer ely offe nsive” and vulga r (which do not g ive rise t o l i ab i lity ) to something so “seve re or

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Kean v. It- W

orks, Inc ., et al. perva sive [as] t o al t er t h e conditions of the victim’s employ ment and cre ate an abusive working environment.” Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21 (1993); see Zaring Homes , 104 F.3d at 826 (“A lthough the verba l comments wer e offe nsive and i n appropr iate, and
. . . defe ndant’s employ ees did not alway s conduct themselves in a profe ssional manner , Title VI I was not desig ned to purg e the wor

kplace of vulg arity ”).
Even if Kea

n could satisfy the sever ity and perva siveness require ments, s h e fa ces an additional barr ier. Be cause she sued her employ ers, not Roer, she must show that I T-Works and HC5 wer e themselves culpable—tha t their “re sponse manifest[ed] indiffer ence or unrea sonablene ss in light of the fac ts the employ er[s] knew or should have known.” Hawkins v. Anheuser- Busch, Inc. , 517 F.3d 321, 338 (6th Cir. 2008) (citation and int er n al q u o tation marks omitted). No such conclusion could b e m ad e o n this rec ord. Manag ement took Kea n’s complaints seriously
. Both
owner s separ ately told Roer to stop the inappropria te comments. And the owner s testified without contra diction that no one complained ag ain about Roer, even when they asked employ ees sever al times whether the problem had r esurf ace d.
Kea n’s state-law claim far es no better. As under fede ral law, so under Michig an law: when
an employ er responds to repor ts of cowor

ker hara ssment in a way that “re as o n ably serve [s] to preve nt future hara ssment of the plaintiff,” the employ er is not liable. Chambers v. Trettco, Inc. , 614 N.W.2d 910, 919 (Mich. 2000). I T-Works’s actions afte r lear ning of Roer’s comments insulate the employ ers f

rom liability
.

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orks, Inc ., et al. Retaliation. Kea

n’s rema ining claims conce rn I T-Works’s decision to fire her. She claims that the firing was motivated by her complaints about Roer’s comments near ly three months ear lier. To show ret al i ati on under Title VI I or Michig an law, Kea n must show that (1) she eng ag ed in protec ted activity ; (2) her employ ers knew she did so; ( 3) she experience d an adver se employ ment action; and (4 ) t h e adver se employ ment action was causa lly connec ted to the protec ted activity , which is to say the protec ted activity was “a signific ant fac tor” motivating the employ ment action. Jack lyn v. S ch er i n g -P lough Healthcare Prods. Sales Corp. , 176 F.3d 921, 929 (6th Cir. 1999); Barrett v. Kirtland C

mty. Coll ., 628 N.W.2d 63, 70 (Mich. App. 2001).
Kea n cannot satisfy the fourth element. Her only evidenc e of causa tion is that the discharg e
came roug hly two-and- a-ha lf months afte r t he complaint. Alt h o u gh “ther e may be circumstance s wher e evidenc e of temporal proxi mity alone would be sufficie n t t o support” an infere nce of
causa tion, those circumstanc es do not exist here
. Nguyen v. City of Cleveland , 229 F.3d 559, 567 (6th Cir. 2000). I n Nguyen , for example, we held that a one-month g ap betwee n a complaint and alleg edly reta liatory conduct could not, without more, support a ca u s al infere nce. Id. at 565–67. Kea n fac es a steepe r (and insurmountable) hill here , as the gap i n time was two and a half times longe r.
Be sides the absenc e of any evidenc e of reta liation, t h er e i s aff irmative evidenc e that conditions improved for Kea n afte r the complaint. Fa

r from punishing Kea

n afte r she threa tened to file a sexual hara ssment complaint about Roer, I T-Works rew arde d her with an improved evalua tion and a substantial pay incre ase. I nterve ning favor able actions of an employ er may not be a complete - 6 -No. 10-2512

Kean v. It- W

orks, Inc ., et al. bar to rec overy , cf. Clay v. United Parcel Servic e, Inc. , 501 F.3d 695, 711 (6th Cir. 2007), but they
assure dly weig h ag ainst a cla im of retaliation.
Two other issues remai n . Ke an arg ues that the district court should have overlooke d her inability to reme mber the details of Roer’s comments during her deposition beca use t he parties ag ree d to continue her deposition on another day but then cancelled it. On t h at second day , Kea n claims, her attorney would have helped her to “ clar ify [] the rec ord,” presumably with ma terial she could not reme mber the first time. Br
. at 44. Yet Kea n has only herse lf to blame for the omission. Rather than waiting for a second deposition, she could have place d any newly reme mbere d details in her a ffidavit. See Fe d. R. Civ. P . 56(c)
. Kea n also arg ues that the district court should have sanctioned the defe ndants for failing to turn over the corr ect employ ment manual until midway throug h the discovery period. Br
. at 22–23. But Kea n never moved for sanctions on this g ro u nd, as require d by Rule 37(c) (1) of the Fe dera l Rules of Civil Procedur e. Even if she had, the district c ourt found that sanctions would have been inappropria te beca

use the defe ndants willingly share d the employ ment manual during the discovery period. That deter

mination was not an abuse of discretion. Tisdal e v. Fed. Express Corp. , 415 F.3d 516, 525 (6th Cir. 2005).
F in a ll y , b e c a

u s e th e d is tr ic t c o u

r t p r o p e r ly g r a

n ted summary judgme nt—give n the employ ers’
rea sonable response to Kea n’s complaints, her l ac k o f evidenc e demonstrating the sever ity of the comments and the absenc e of any proof of reta liatory motive—we need not r eac h HC-5’s separ ate
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Kean v. It- W

orks, Inc ., et al. arg ument that it lacke d notice of the hara ssment. For like rea sons, we need not decide whether Roer
was an employ ee or an independe nt contra ctor, or whether HC-5 actua lly qualified as an “employ er” under the applicable statutes.
I I I
. For these re asons, we a ffirm.

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