1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

VANESSA PEAKE,

Plaintiff, No. 09-CV-10348

vs. Hon. Gerald E. Rosen

MARTINREA FABCO

HOT STAMPING, INC.,

Defendant.

__________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION AND DENYING

DEFENDANT’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on March 28, 2011 

PRESENT: Honorable Gerald E. Rosen

United States District Chief Judge

This Whistleblower’s Protection Act action is presently before the Court on

Defendant Martinrea Fabco Hot Stamping, Inc.’s March 14, 2011 Objections to

Magistrate Judge Michael Hluchaniuk’s February 28, 2011 Report and Recommendation

in which the Magistrate Judge recommends that the Court deny Defendant’s Motion to

Dismiss or for Summary Judgment. Magistrate Judge Hluchaniuk determined that the

evidence presented demonstrates that issues of fact exist with respect to the issues of

causation and pretext. Defendant contends these determinations are erroneous. The Court

2:09-cv-10348-GER-MJH Doc # 39 Filed 03/28/11 Pg 1 of 4 Pg ID 1212
2

disagrees. The evidence submitted presents a number of material issues of disputed fact. 

Such factual disputes, as well as the issue of credibility presented by the testimony of

witnesses, are matters for a jury to decide.

Defendant also objects to the Report and Recommendation because the “protected

activity” relied upon by the Magistrate Judge in drawing his conclusions about Plaintiff’s

Whistleblower claim (Complaint, Count I) was not alleged in Plaintiff’s Complaint. 

Defendant further objects because Plaintiff did not mention in her Complaint the

violation of Detroit City Ordinance 08-05 in her violation of public policy claim in

Count II of her Complaint. Therefore, Defendant argues that it was not afforded fair

notice. 

The notice inquiry necessarily proceeds on a case-by-case basis. Carter v. Ford

Motor Company, 561 F.3d 562, 568 (6th Cir. 2009). The Sixth Circuit has repeatedly

found that a claim raised in response to a summary judgment motion provides sufficient

notice to the opposing party. See e.g., Bond v. Cox, 20 F.3d 697, 700-01 (6th Cir. 1994);

Vencor v. Standard Life & Accident Ins. Co., 317 F.3d 629, 642 n. 11 (6th Cir.2003);

Howington v. Quality Rest. Concepts, LLC, 298 F. App’x 436, 442 n. 6 (6th Cir.2008)

(unpublished); see also Carter v. Ford, supra.

Furthermore, pursuant to Federal Rule of Civil Procedure 56(c), the Magistrate

Judge was authorized to consider all pleadings, depositions, affidavits and admissions on

file in order to determine whether summary judgment was appropriate. See Matsushita

2:09-cv-10348-GER-MJH Doc # 39 Filed 03/28/11 Pg 2 of 4 Pg ID 1213
3

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Therefore, issues

raised in Plaintiff’s Response Brief and in her deposition were properly before the

Magistrate Judge for consideration in ruling upon Defendant’s Motion for Summary

Judgment. The Court further notes that Defendant had ample time to file a Reply Brief

and to present evidence supporting its position on these issues before the summary

judgment hearing and the Magistrate Judge’s issuance of his R&R. Accordingly, the

Court concludes that Defendant had proper notice of Plaintiff’s claims regarding the

“protected activity” and the Detroit Ordinance ruled upon by the Magistrate Judge. See

Bond v. Cox, supra.

For all of the foregoing reasons,

IT IS HEREBY ORDERED that Defendant’s Objections to the Magistrate Judge’s

Report and Recommendation are OVERRULED.

IT IS FURTHER ORDERED that the Magistrate Judge’s Report and

Recommendation of February 28, 2011 [Dkt. # 35] is adopted by the Court.

IT IS FURTHER ORDERED that, for the reasons stated in the Report and

Recommendation, Defendant’s Motion to Dismiss and for Summary Judgment [Dkt. #

23] is DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: March 28, 2011

2:09-cv-10348-GER-MJH Doc # 39 Filed 03/28/11 Pg 3 of 4 Pg ID 1214
4

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

on March 28, 2011, by electronic and/or ordinary mail.

s/Ruth A. Gunther 

Case Manager

2:09-cv-10348-GER-MJH Doc # 39 Filed 03/28/11 Pg 4 of 4 Pg ID 1215