UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHELLY ALLEN,

Plaintiff,

v.

HENRY FORD HEALTH SYSTEM,

Defendant.

 /

Case No. 08-14106

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT [23]

This employment dispute comes before the Court on Defendant Henry Ford Health

System (“Henry Ford”)’s motion for summary judgment. Plaintiff Shelly Allen’s complaint

alleges that she was constructively discharged from her position as a Nurse Associate II

in Defendant’s Neurology department in March 2008 because of her race and asserts

claims of race discrimination in violation of 42 U.S.C. § 2000e-2(a)(1) (“Title VII”); and

Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws §§ 37.2101, et seq.

Plaintiff’s complaint also alleges claims of retaliation in violation of Title VII and Michigan’s

ELCRA. For the reasons stated below, Defendant’s motion is GRANTED.

I. Facts

A. Plaintiff’s Employment With Defendant

Plaintiff began her employment with Defendant Henry Ford Health System in

November 2002 as a critical care nurse. (Pl.’s Dep. at 28.) In November 2003, Plaintiff

voluntarily transferred to a Nurse Associate II position in the Pulmonary/Critical Care
 1

In January 2006, Plaintiff filed an EEOC charge of race discrimination alleging that her

position had been eliminated because of her race; not because of the lack of funding. The

2006 EEOC charge was settled, and Plaintiff’s counsel stipulated on the record during

Plaintiff’s deposition that the facts surrounding her prior EEOC charge and subsequent

settlement have no bearing on the claims asserted in this lawsuit. (Pl.’s Dep. at 29, 47,

225.) At the February 3, 2010 hearing, this Court rejected Plaintiff’s counsel’s belated and

legally unsupported attempt to disclaim the earlier on-the-record stipulation on which

Defendant had relied. 

2

department. (Id. at 28-29.) In February 2006, Defendant eliminated this position due to a

lack of grant funding.1

 Plaintiff subsequently worked as a Nurse Associate II in the

Neurology department. (Id. at 57-58.) Plaintiff claims in this lawsuit that she was

constructively discharged from this position in the Neurology department in February 2008.

Plaintiff’s job duties in the Neurology department were to provide nursing support to

physicians conducting clinical research studies or tests in the field of neurology. Her direct

supervisor was Frances DeVos, Manager of Research Projects for the Neurology

department. (DeVos Dep. at 7, 9.) Ms. DeVos’s responsibilities include, among other

things, making sure that the work loads of the eight clinical trial nurses under her

supervision were cohesive with the smooth operation of the Neurology department.

(DeVos Dep. at 8, 12.) The decision as to which nurse to assign to a study is made by both

Ms. DeVos and the physician responsible for that particular study. (DeVos Dep. at 13.)

Various factors are considered, including nurse/patient time, paperwork required, number

of patients in a trial, and current phase of a trial. (DeVos Dep. at 12.) 

B. The February 2008 Reassignment of Studies

On Thursday, February 14, 2008, Ms. DeVos sent Plaintiff and other Neurology

department employees an e-mail informing them that certain studies assigned to research

nurse Maria Nardicchio would be reassigned to Plaintiff and Lisa Pietrantoni, a research
3

coordinator. (Def.’s Ex. E, 2/14/08 e-mail.) Specifically, Plaintiff was to take over the

nursing portion of the studies; Ms. Pietrantoni was to take over the administrative portion

of the studies; and Ms. Nardicchio was to be assigned all epilepsy-related studies. (Id.)

The e-mail ended with a reminder that additional help would be provided if needed:

“Everyone will let me know if the workload becomes too much and we will send in

appropriate assistance.” (Id.) There were a number of reasons for the reassignment,

including an increase in the number of epilepsy trials, an effort to restructure and streamline

the way studies were assigned to nurses, and a personality conflict between Plaintiff and

Ms. Nardicchio (Plaintiff found her to be too “clingy”). (DeVos Dep. 21-24; Pl.’s Dep. at 73-

78.) 

On Friday, February 15, 2008, a meeting took place to discuss the transfer of studies.

(Pl.’s Dep. at 98.) The meeting resulted in the following work assignments: (1) Plaintiff and

Ms. Pietrantoni were assigned one study to work together, with Plaintiff performing the

nursing duties and Ms. Pietrantoni performing the administrative duties; (2) Ms. Pietrantoni

was assigned those studies that did not require nursing care; and (3) Ms. Nardicchio was

assigned with the task of closing those studies that did not require nursing care. Plaintiff

was not assigned the bulk of Ms. Nardicchio’s studies. Rather, that burden fell on Ms.

Pietrantoni. (DeVos Dep. at 32-33.) Dr. Varelas confirmed this in an e-mail to Plaintiff

stating, “[m]y impression from the meeting was that not you, but Lisa [Pietrantoni], will take

over. These are small unfunded studies anyway. Shouldn’t provoke such turmoil . . . .”

(Def.’s Ex. F, 2/26/08.)

As a result of the February 15, 2008 meeting, Plaintiff assumed that she was given

five additional studies and assumed that this would be too much work for her to handle.
4

(Pl.’s Dep. at 99-101, 108, 136-37, 158-60.) On Monday, Plaintiff flew to New Orleans for

a work-related conference. (Id. at 108.) She returned to work on Monday, February 25,

2008. (Id. at 112.)

C. Plaintiff’s February 25, 2008 Letter of Resignation

On Monday, February 25, 2008, Plaintiff took her complaints to Dr. Alex Lowrey, Ms.

DeVos’s supervisor. She told him that she felt the reassignment of studies was unfair and

discriminatory. Mr. Lowrey told Plaintiff that he would talk to Ms. DeVos and get back with

Plaintiff. (Id. at 112-13.)

Later that afternoon, Ms. DeVos called Plaintiff to her office. It is at this meeting that

Plaintiff claims she was constructively discharged. She described the meeting with Ms.

DeVos as follows:

A: I went in her office. She closed the door. She said I’m very – I spoke

with Alex [Lowrey] and I’m very upset with what I heard. She said, first

of all, you don’t have five new studies. I said yes, I do. She said no, you

don’t. I said yes, I do. She then – I said why would I have to take on all

of Maria’s work because she’s not doing her job? I’ve been telling you

she hasn’t been doing her job for the longest. She said either take it or

resign. I said why would I take her studies? And she said oh, you’re

resigning. I expect your letter of resignation by the end of the day. And

I walked out of her office.

(Id. at 113-14.) 

Plaintiff turned her letter of resignation in to Mr. Lowrey later that same day without

any further conversation. (Id. at 120, 122.) Plaintiff’s February 25, 2008 letter of

resignation is addressed to the Department of Neurology and states:

This letter serves as a two week notice of my resignation from the department.

After a discussion with management, regarding the transition of five new studies

from Maria Nardicchio to Shelly Allen due to Maria’s inability to perform her job

adequately and effectively I am forced to resign from my position. I feel this

action is discriminatory And [sic] unjustified and I cannot continue to work here
 2

Plaintiff made a similar complaint about being “forced to resign” and complaints about

racial discrimination in her exit interview. (Farquharson Dep. at 33-35.)

5

under these circumstances. I would like to thank the department and all the

doctors for allowing me the opportunity to be a member of the neurology team.

(Def.’s Ex. K, 2/25/08 resignation letter (emphasis added).) When asked to explain the

highlighted language, Plaintiff testified that she had “asked for someone to look into my

workload and I was fired.” (Pl.’s Dep. at 126.) 

Plaintiff continued to work until her two week notice expired. On February 26, 2008,

Plaintiff sent an e-mail to physicians she had worked with in the Neurology department

explaining what “caused her to resign.” (Def.’s Ex. I, 2/26/08 e-mail; Pl.’s Dep. at 129-33.)

Plaintiff explained that she had been reassigned five new studies because Ms. Nardicchio

was not doing a good job. She “did not feel it was fair,” and had asked Mr. Lowrey “why”

she was “the only nurse who needs to cover 5" of Maria Nardicchio’s studies. (Def.’s Ex.

I, 2/26/08 e-mail.) Mr. Lowrey told her that he would get back with her, but he did not.

Instead, Ms. DeVos had her come to her office and told Plaintiff “in a very matter of fact

way I either take the studies because Maria’s plate was full or resign. So I resigned. I could

not take on this woman’s work in addition to my own.” (Id.) 

Plaintiff also made contact with Defendant’s CEO Anthony Armada’s office

complaining that she was “forced to resign,” and was referred to the human resources

department.2

 (DeVos Dep. at 65; Farquharson Dep. at 19-21, 27; D. Saoud Dep. at 11-25.)

On February 29, 2008, Plaintiff personally met with Deborah Saoud, a senior human

resources representative, telling her what had transpired since February 14, 2008. When

Saoud asked Plaintiff if she wanted to reconsider her resignation and attempt to work it out
 3

Defendant’s human resources department was already alerted that Plaintiff was

complaining about discrimination. Because her resignation letter complained of

discriminatory action, Ms. DeVos promptly notified Nancy Farquharson, a senior employee

relations specialist in Defendant’s human resources department of that fact. (DeVos Dep.

at 43-44; Farquharson Dep. at 17.) An investigation of Plaintiff’s complaint of racial

discrimination was conducted, and Defendant ultimately concluded that there was no

evidence of discrimination. (Def.’s Ex. M, 8/5/08 letter.) 

6

with Ms. DeVos, Plaintiff told her that “her decision [to resign] was final.” (Saoud Dep. at

19-21.) 

Others also contacted Plaintiff about her resignation. On February 26, 2008, Dr.

Varelas – the physician present at the February 15, 2008 reassignment meeting – asked

her to “strongly reconsider [her] decision.” (Def.’s Ex. F.) On February 28, 2008, Ms.

DeVos told Plaintiff in an e-mail that she “did not want to loose [sic] a good employee, but

believe[d] that [Plaintiff] had already made up [her] mind.” (Def.’s Ex. N.) On March 3,

2008, in another e-mail, Ms. DeVos asked Plaintiff if she was in fact resigning: 

Shelly:

Alex [Lowrey] and I will need to know if you are terminating your employment at

Henry Ford so that correct codes are entered into the computer.

(Def.’s Ex. P, 3/3/08 e-mail.) Plaintiff did not respond to these e-mails and did not withdraw

her letter of resignation.

On March 3, 2008, Plaintiff filed an appeal through Defendant’s internal grievance

procedure, claiming that she was forced to resign because of her race.3

 (Def.’s Ex. J,

Employee Appeals Forms at 8-10.) Plaintiff’s internal grievance was denied at each step

of the process. (Def.’s Ex. J, Pl.’s 3/3/08, 4/18/08, and 5/22/08 Appeals Forms; Ex. Q,

Mgmt. Appeal Resp. Form; Ex. M, 8/5/08 letter.) 

On March 4, 2008, Plaintiff filed a charge of discrimination with the Equal Employment
7

Opportunity Commission (“EEOC”) alleging race discrimination and retaliation. (Pl.’s

Compl. ¶ 25.) The EEOC ultimately dismissed Plaintiff’s charges and refused her request

for reconsideration. (Pl.’s Dep. at 207-08.) 

Plaintiff’s last day of work was March 7, 2008. (Pl.’s Dep. at 11.)

On September 25, 2008, Plaintiff filed this employment discrimination action against

Defendant. 

II. Summary Judgment Standard

Summary judgment is appropriate only when there is “no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). 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. 242, 251-52 (1986). Rule 56(c)

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

element essential to the party’s case and on which that party bears the burden of proof at

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving party bears the initial burden of showing the absence of a genuine issue

of material fact. Celotex, 477 U.S. at 323. Once the moving party meets this burden, the

non-movant must come forward with specific facts showing that there is a genuine issue

for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In

evaluating a motion for summary judgment, the evidence must be viewed in the light most

favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

The non-moving party may not rest upon its mere allegations, however, but rather “must

set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
 4

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

8

The mere existence of a scintilla of evidence in support of the non-moving party’s position

will not suffice. Rather, there must be evidence on which the jury could reasonably find for

the non-moving party. Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 432 (6th Cir. 2002).

III. Analysis

A. Race Discrimination

This matter is now before the Court on Defendant's motion for summary judgment

arguing that Plaintiff cannot establish race discrimination with either direct or circumstantial

evidence under Title VII or ELCRA. Claims of race discrimination brought pursuant to

Michigan's ELCRA are analyzed under the same evidentiary framework as similar claims

brought under Title VII. Jackson v. Quantex Corp., 191 F.3d 647, 658 (6th Cir. 1999). A

plaintiff seeking recovery under Title VII bears the burden of proving a prima facie case of

discrimination by presenting either direct evidence of intentional racial discrimination or

circumstantial evidence, following the McDonnell Douglas4

 burden-shifting analysis. Rowan

v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 547 (6th Cir. 2004). The Court first

examines Plaintiff's claim that she presents direct evidence of intentional race

discrimination.

1. Alleged Direct Evidence of Race Discrimination

Plaintiff argues that she has presented direct evidence of discriminatory animus by

Defendant. The Sixth Circuit defines "direct evidence as evidence that proves the

existence of a fact without requiring any inferences." Blair v. Henry Filters, Inc., 505 F.3d

517, 523 (6th Cir. 2007) (internal quotation marks and citation omitted). "When a plaintiff
9

establishes discrimination through direct evidence, the burden shifts to the employer to

prove by a preponderance of the evidence that it would have made the same decision

absent the impermissible motive." Id. (internal quotation marks and citation omitted). 

Plaintiff contends that the following comments made to her by her immediate

supervisor, Ms. DeVos, are direct evidence that her termination was motivated by racial

discrimination: (1) Ms. DeVos's statement to Plaintiff while passing her in the hallway that

"I can flip my hair like that too;" (2) Ms. DeVos's statement that "we only hire blonds;" (3)

Ms. DeVos's statement, in response to Plaintiff's request for a day off work to attend a court

hearing, asking "is one day enough because I don't want you to return in shackles;" and (4)

Ms. DeVos's isolated reference to Plaintiff as a "little girl" when speaking to her. (Def.'s Ex.

Q, Mgmt. Appeal Resp. Form at 2; Ex. J, Employee Appeal Form at 9.) Defendant argues

that none of these statements constitutes direct evidence of racial discrimination because

(1) all were made at times remote from Plaintiff’s alleged constructive discharge on

February 25, 2008; and (2) multiple inferences are required to conclude that any of these

statements are evidence of racial discrimination. 

Applying the Sixth Circuit's definition for direct evidence, this Court agrees that none

of these comments constitutes direct evidence of race discrimination. Each comment is

ambiguous and inoffensive when viewed without the assistance of any inferences.

"Because the evidence, if believed, does not require the conclusion that unlawful

discrimination was at least a motivating factor in the employer's actions, the evidence does

not suffice to establish a claim of [race] discrimination using direct evidence." White v.

Columbus Metro. Housing Auth., 429 F.3d 232, 239 (6th Cir. 2005) (internal quotation

marks and citations omitted). "Further, even if the comment did in some way evidence
10

discriminatory intent, it fails to constitute direct proof of [race] discrimination because '[t]he

critical inquiry . . . is whether [race] was a factor in the employment decision at the moment

it was made.'" Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989)

(emphasis in original)). Here, Plaintiff presents no evidence linking the challenged

comments to the time she was allegedly forced to resign. 

2. Disparate Treatment 

Plaintiff likewise fails to defeat summary judgment on her claims of race discrimination

using circumstantial evidence. To establish a prima facie case of employment

discrimination under Title VII using circumstantial evidence, the plaintiff must show that (1)

she is a member of a protected class, (2) she was subject to an adverse employment

action, (3) she was qualified for the position at issue, and (4) she was treated differently

than similarly situated employees outside her protected class. Smith v. City of Salem,

Ohio, 378 F.3d 566, 570 (6th Cir. 2004). 

If a prima facie case is established, the defendant can rebut the presumption of

unlawful discrimination by setting forth a legitimate, non-discriminatory business reason for

the challenged employment action. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507

(1993). Once this is done, the burden shifts back to the plaintiff to show that the articulated

reason was a mere pretext for intentional race discrimination. McDonnell Douglas, 411

U.S. at 804. "A plaintiff can refute the legitimate, nondiscriminatory reason articulated by

the employer to justify an adverse employment action by showing that the proffered reason

(1) has no basis in fact, (2) did not actually motivate the defendant's challenged conduct,

or (3) was insufficient to warrant the challenged conduct." Johnson v. Kroger Co., 319 F.3d

858, 866 (6th Cir. 2003) (internal quotation and citation omitted). 
11

Defendant argues that Plaintiff has not and cannot establish the second and fourth

elements of her prima facie case; i.e., that she was constructively discharged or treated

less favorably than similarly situated white employees. This Court agrees.

a. Adverse Employment Action - Constructive Discharge

Plaintiff argues that her supervisor, Ms. DeVos, forced her resignation and thus

constructively discharged her on February 25, 2008. She further argues that this adverse

employment action satisfies the second element of her prima facie race discrimination

case. Plaintiff fails, however, to present evidence showing that she was constructively

discharged. 

“To constitute a constructive discharge, the employer must deliberately create

intolerable working conditions, as perceived by a reasonable person, with the intention of

forcing the employee to quit and the employee must actually quit.” Moore v. Kuka Welding

Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999); see also Vagts v. Perry Drug

Stores, Inc., 516 N.W.2d 102, 105 (Mich. Ct. App. 1994) (observing that to establish a claim

of constructive discharge under Michigan law, an employee must show that his employer

deliberately made his working conditions “so intolerable that the employee is forced into an

involuntary resignation or, stated differently, when working conditions become so difficult

or unpleasant that a reasonable person in the employee’s shoes would feel compelled to

resign.” (internal quotation marks and citation omitted)). Plaintiff has not persuaded the

Court that a reasonable person in her shoes would feel compelled to resign when faced

with the prospect of taking on the additional studies Plaintiff was assigned in February

2008. 
12

Plaintiff argues that she was forced to resign when Ms. DeVos gave her the ultimatum

of either taking on Ms. Nardicchio’s studies or resigning. Specifically, Plaintiff presents

evidence stating that she “was told in a very matter of fact way [that she] either take the

studies because Maria’s plate was full or resign. So [she] resigned.” (Def.’s Ex. J,

Employee Appeal documents at 3, 9, 10.) Plaintiff’s February 25, 2008 letter of resignation

similarly states that she resigned rather than comply with her supervisor’s order to accept

the reassignment of certain studies from another nurse.

This letter serves as a two week notice of my resignation from the department.

After a discussion with management, regarding the transition of five new studies

from Maria Nardicchio to Shelly Allen due to Maria’s inability to perform her job

adequately and effectively I am forced to resign from my position. I feel this is

discriminatory [a]nd unjustified and I cannot continue to work here under these

circumstances. I would like to thank the department and all the doctors for

allowing me the opportunity to be a member of the neurology team.

(Def.’s Ex. K, 2/25/08 Resignation Letter.) At her deposition, Plaintiff once again explained

why she felt she was constructively discharged. 

Q: I just want you to say exactly what [Ms. DeVos] said that you felt she was

terminating you, that meant she was terminating you.

A: She told me I was going to do it or resign. I said, “Why would I do her

work?” She said, “Then you’re resigning. I’ll expect your letter of

resignation by the end of the day.” That’s what led me to believe that I

was being fired.

(Def.’s Ex. A, Pl.’s Dep. at 128-29.) 

Plaintiff presents evidence of this ultimatum but fails to present evidence that the

reassignment of studies from another nurse to her was intended by her employer to make

her working conditions so difficult or intolerable that a reasonable person in her shoes

would feel compelled to resign. In fact, testimony from her deposition reveals that Plaintiff

did not have knowledge of the facts necessary to confirm her assumption that more studies
13

meant more work and intolerable working conditions. 

Q: Was it true that these were small unfunded studies?

A: I don’t know what kind of funding those studies had. They had just been

presented to me.

Q: So you didn’t even know how much work they entailed?

A: No.

Q: That you were complaining about being overworked even before you

understood how much work were in these studies?

A: I know all the 12 studies I had prior to that entailed a whole lot of work,

so the new five I didn’t think was any different.

Q: But just so I’m clear, you at no time made any effort to understand how

much work these supposed five studies you were getting involved, right?

A: Well, I knew what some of them. They had some discussion in the office

about what was going to be done, so about the work and how I was – the

information was going to be gathered, so yeah, I had some idea of some

of the work that was going to be involved, but did I have a total clear

picture? No. But I knew it was new work, more work, for me.

* * *

Q: Do all studies require the same amount of time, same amount of your time?

A: No.

* * *

Q: So the fact that you have a number of studies – So the fact that you have

ten studies, for example, and somebody else has ten studies, doesn’t

mean that you’re both going to be equally busy just because you have

ten studies, correct?

A: I would say that’s correct, but ten studies with patients in all of them and

they got zero in six of theirs, it would make a difference.

* * *

Q: I mean so really it depends upon what the study is, how many patients
14

they [sic] are, and what kind of paperwork and protocol you have to fill

out, correct?

A: Exactly. 

* * *

Q: So what did you know about the protocol, the paperwork, the amount of

effort that had to be put into the studies that you claim that you were

given at the meeting on February 15?

A: I know that every study that I have has required an immense amount of

my time. . . . So I assumed the others would too.

(Pl.’s Dep. at 136-37, 158-60.) 

Plaintiff resigned before she was able to determine whether these additional studies

would, in fact, make her workload objectively intolerable. And, as the Sixth Circuit has

observed, “[a]n employee who quits a job in apprehension that conditions may deteriorate

later is not constructively discharged.” Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir.

2002). “Instead, the employee is obliged not to assume the worst, and not to jump to

conclusions too fast.” Id. (internal quotation marks and citation omitted) (citing cases).

Accord Davis v. Ford Motor Credit Corp., No. 3:04-0790, 2005 WL 2452601, **5-6 (M.D.

Tenn. Oct. 3, 2005) (applying Agnew in a disability discrimination case and concluding that

the plaintiff was not constructively discharged when she “did not give her new position a

‘try,’ but instead jumped to the conclusion that she could not do the job or that it would be

too demanding on her physical limitations.”). The evidence Plaintiff presents does not

support a finding that she was constructively discharged. 

Plaintiff likewise fails to present evidence that it was Defendant’s intent to force her

to resign. In fact, the evidence is to the contrary. During the two weeks between Plaintiff’s

resignation and her last day of work, she was given the opportunity to reconsider. She did
15

not do so. (Def.’s Ex. N, 2/28/08 email from DeVos; Ex. P, 3/3/08 email from DeVos; Ex

F, 2/26/08 email from Dr. Varelas; Ex. H, Lowery Dep. at 34; Saoud Dep. at 19-20.) 

In light of the above, Plaintiff has not and cannot establish the second element of her

prima facie case of race discrimination. Even if this were otherwise, she has not and

cannot establish the fourth element of her prima facie case; i.e., that she was treated less

favorably than similarly-situated white employees. 

b. Disparate Treatment

Plaintiff presents no evidence showing that similarly situated nurses outside the

protected class were treated more favorably than her; i.e., that any nurse outside the

protected class in the Neurology department was either (1) reassigned studies, refused to

accept them, and was not given an ultimatum of accepting them or resigning, or (2)

assigned a significantly lesser workload than Plaintiff and was never assigned additional

studies. (Pl.’s Dep. at 48-49, 71, 103-04, 107-08.) In her response brief, Plaintiff fails to

address this element of her prima facie case. At her deposition, Plaintiff identified a

number of white nurses who she claimed received less work than her; but, upon

questioning, Plaintiff admitted that she had no personal knowledge of these nurses’s

workloads. For example, Plaintiff admitted that she did not “know what other people were

working on” when she first came to the Neurology department. (Id. at 49.) Plaintiff further

admitted that, after working in the department for some time, she still had no personal

knowledge of individual nurse’s workloads.

Q: Well, after you started working there did you come to understand that

some people work on strokes, other people work on epilepsy, other

people work on other different kinds of areas?

A: Some, yes.
16

Q: Okay. What was the division of work, so to speak, among the people

that were working on the research projects?

A: Most were specific to one area.

Q: Okay. And what were they specific to? 

A: I don’t know in detail, but I knew like some of the studies that they did.

I didn’t know all of them that they did.

(Id. at 58.) When asked to specify the number of studies assigned to individual nurses,

Plaintiff could only identify the physician with whom each nurse worked. (Id. at 59-61.)

Plaintiff’s testimony reveals that she was merely speculating that she had more studies

assigned to her than her co-workers. (Id. at 64-67.) Plaintiff’s testimony also reveals that

she believed she had more work than her co-workers since January 17, 2007; long before

the February 2008 reassignment that precipitated her resignation. (Id. at 71.) 

Plaintiff also failed to identify any nurse outside the protected class that was treated

more favorably than she was under similar circumstances. Plaintiff testified that a white

nurse, Sherry Payne, was treated more favorably than her because Ms. Payne transferred

to another unit after complaining that she did not get a promised pay increase but was then

allowed to transfer back into the Neurology department two months later despite her earlier

complaints. (Id. at 193-94.) As Plaintiff conceded, however, Ms. Payne did not resign from

her position like Plaintiff did. (Id. at 194.) Rather, she transferred out of the department

and later transferred back. Plaintiff presents no evidence to suggest that she similarly

sought but was denied a transfer. 

As another example of disparate treatment, Plaintiff testified that another white,

neurosurgery nurse, “Algy,” complained about co-workers interfering with her work and

stated that she “wanted to quit to her doctor, her head doctor;” and rather than simply
17

allowing her to do so, Defendant accommodated her by telling her co-workers not to bother

her. (Id. at 194.) Upon further questioning, Plaintiff conceded that Algy’s complaints, unlike

Plaintiff’s, were not about additional work or complaints of disparate workloads. In sum,

Plaintiff cannot demonstrate that other non-protected nurses from the Neurology

department that she claims were treated more favorably were similarly situated to her “in

all relevant aspects.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th

Cir. 1998) (emphasis in original).

For the above-stated reasons, Defendant is entitled to summary judgment on

Plaintiff’s race discrimination claims. The Court now addresses Plaintiff’s claims of

retaliation.

B. Retaliation

To establish a prima facie case of retaliation, Plaintiff must show that (1) she engaged

in protected activity; (2) Defendant had knowledge of the protected conduct; (3) Defendant

took an adverse employment action against Plaintiff; and (4) “there is a causal connection

between the protected activity and the adverse employment action.” Weigel v. Baptist

Hosp. of East Tennessee, 302 F.3d 367, 381 (6th Cir. 2002). In addition to its earlier

argument that Plaintiff cannot establish an adverse employment action, Defendant argues

here that Plaintiff cannot establish the required causal connection between her complaint

of racial discrimination to Mr. Lowrey and her alleged constructive discharge. This Court

agrees with Defendant. “To show causation, a plaintiff must produce sufficient evidence

from which an inference could be drawn that the adverse action would not have been taken

in the absence of the protected conduct.” Id. at 381 (internal quotation marks and citation

omitted). Plaintiff has not done that here.
18

Plaintiff alleges that Ms. DeVos retaliated against her, in violation of Title VII and

Michigan’s ELCRA, after she made complaints of race discrimination (1) to her immediate

supervisor, Ms. DeVos, on February 15, 2008, immediately after the meeting where she

was reassigned additional studies; and (2) to Ms. DeVos’s supervisor, Alex Lowery, on

February 25, 2008, immediately before she was summoned to Ms. DeVos’s office and

given the ultimatum of either taking on the additional studies or resigning. As to her

complaints to Ms. DeVos on February 15, 2008, Plaintiff testified that:

A: We just kind of walked silently down the hallway, but as we got to this

court way, which was pretty empty – well, was it was very empty,

because we were the only ones in there – I began to speak out about

how I felt about being dumped on.

Q: What did you say?

A: I told Frances [DeVos] that I didn’t feel that it was right that I took on

Maria’s studies because she hadn’t been doing a good job, and I also

told her that I bet if I was Maria and did the same thing I’d be fired.

Q: And what did Frances say?

A: I told her it was discrimination then.

Q: You thought it was discrimination because of what?

A: Because if I was as a black person, Afro-American, were not doing a good

job, that somebody else would be required to do my job and I would still keep my

job. Wouldn’t have happened like that, like it happened for Maria.

(Id. at 103-04 (emphasis added).) Plaintiff did not testify that she told Frances that she felt

she was being discriminated against because of her race. In fact, Plaintiff testified that the

first person she shared that belief with was Mr. Lowrey. (Id. at 201-02.) As observed by

the Sixth Circuit, Plaintiff’s general comment to Ms. DeVos about “discrimination” was too

vague to constitute protected activity for purposes of a retaliation claim. See Fox v. Eagle
19

Distrib. Co., Inc., 510 F.3d 587, 591-92 (6th Cir. 2007) (observing that “[a]n employee may

not invoke the protections of the Act by making a vague charge of discrimination;” and

further observing that to qualify as protected activity, the employee must reference specific

acts of discrimination) (internal quotation marks and citation omitted). 

On February 25, 2008, Plaintiff took her complaints to Dr. Alex Lowrey. After getting

settled in at work, she immediately went to his office and waited for him to arrive.

Q: Why did you do that?

A: Because I was waiting on him to come in to discuss the meeting and the

dumping of the studies.

Q: Okay. Well, when he came in what did you say to him?

* * *

Q: What did you say?

A: That Frances had called an emergency meeting on Friday before I left for

my trip, that she had told me that the studies were being removed from

Maria because her plate was full, and I was going to be taking them over

and asking to help on some. I told him that I have taken on everybody’s

work ever since I have been there that has left. I said I didn’t feel that it

was fair, I thought it was discriminatory, and I wanted to know why wasn’t

this work distributed amongst all of us instead of me every time.

(Id. at 112-13 (emphasis added).) Plaintiff later testified that she complained to Mr. Lowrey

at this February 25, 2008 meeting that she felt she was being discriminated against

because of her race. She also admitted that this was the first time that she had complained

about racial discrimination since moving to the Neurology department. (Id. at 201-02.)

Plaintiff testified that Mr. Lowrey told her that he would talk with Frances DeVos “and

find out why [all the reassigned studies] were coming to [her]” and would get back with

Plaintiff. (Id. at 113.) Later that afternoon, Ms. DeVos called Plaintiff to her office. It is at
 5

Plaintiff’s counsel stipulated at her deposition that the retaliation charge in this lawsuit

has nothing to do with her filing an earlier EEOC charge. (Pl.’s Dep. at 225.)

20

this meeting that Plaintiff claims Ms. DeVos constructively discharged her in retaliation for

reporting to Mr. Lowrey that she felt she was being singled out for the reassignment of

studies because of her race. At her deposition, however, Plaintiff did not testify that she

told Ms. DeVos about this protected activity or that Ms. DeVos revealed during their

conversation that she was aware of Plaintiff’s earlier race-based complaint. Moreover,

Plaintiff fails to come forward with any evidence that disputes Ms. DeVos’s deposition

testimony that Mr. Lowrey did not tell her about Plaintiff’s complaint of race discrimination.

(DeVos Dep. at 35-39.) Rather, the only evidence is that Plaintiff felt Ms. DeVos was

retaliating against her because she went over her head to her boss about the reassignment

of studies. 

A: I went in her office. She closed the door. She said I’m very – I spoke

with Alex [Lowrey] and I’m very upset with what I heard. She said, first

of all, you don’t have five new studies. I said yes, I do. She said no, you

don’t. I said yes, I do. She then – I said why would I have to take on all

of Maria’s work because she’s not doing her job? I’ve been telling you

she hasn’t been doing her job for the longest. She said either take it or

resign. I said why would I take her studies? And she said oh, you’re

resigning. I expect your letter of resignation by the end of the day. And

I walked out of her office.

(Id. at 113-14.) When asked why she felt Ms. DeVos had “retaliated” against her, Plaintiff

responded “because I went to her supervisor.” (Id. at 169, 208.) When asked to elaborate,

Plaintiff responded “[b]ecause I went to her boss and made him aware of what was

happening to me and I was sent back to her and she fired me.” (Id. at 170.)5

 

In sum, even if Plaintiff were able to establish a constructive discharge, her claim of

retaliation fails because there is no evidence that Ms. DeVos knew of Plaintiff’s protected
21

activity before constructively discharging her. See Fenton v. HiSAN, Inc., 174 F.3d 827,

832 (6th Cir. 1999) (observing that a plaintiff cannot establish a prima facie case of

retaliation absent evidence that “her protected activity was known to those who made” the

adverse employment decision). 

Finally, even if Plaintiff were able to establish a prima facie case of retaliation, her

claim still fails because she cannot establish pretext. Forcing an employee to resign when

she questions and refuses a supervisor’s work assignment is a legitimate, nondiscriminatory reason for that employment action. See Arnold v. Marous Bros. Constr.,

Inc., 211 F. App’x 377, 381 (6th Cir. Nov. 17, 2006) (observing that questioning a work

order and refusing to perform had the same effect, and that the employee’s refusal of a

work order was a legitimate, non-discriminatory reason for the employer to force the

employee to resign thus triggering the employee’s burden of showing that the employer’s

action was a mere pretext for race discrimination). Because Defendant stated a legitimate,

non-discriminatory reason for its action, the burden shifts back to Plaintiff to present

evidence showing that Defendant’s stated reason was merely a pretext for retaliation. “The

plaintiff must submit evidence that the employer did not honestly believe in the proffered

non-discriminatory reason for its adverse employment action.” Balmer v. HCA, Inc., 423

F.3d 606, 614 (6th Cir. 2005) (internal quotation marks and citations omitted). Plaintiff has

not met this burden. She presents no evidence that Ms. DeVos did not honestly believe

that Plaintiff was choosing to resign rather than accept the additional studies assigned to

her in February 2008. 

IV. Conclusion

For the above-stated reasons, Defendant’s motion for summary judgment is
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GRANTED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: February 8, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record

on February 8, 2010, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager