UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

MARC R. MARTER,

Plaintiff,

Case Number 09-11661-BC

v. Honorable Thomas L. Ludington

JE JOHNSON CONTRACTING, INC.,

Defendant.

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OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT AND CANCELING HEARING

Plaintiff Marc R. Marter filed a one-count complaint on May 1, 2009, alleging that

Defendant JE Johnson Contracting, Inc., retaliated against him in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. Generally, Plaintiff alleges that

Defendant retaliated against him when it terminated his employment after he opposed three instances

of what he perceived to be gender discrimination or sexual harassment.

Now before the Court is Defendant’s motion for summary judgment [Dkt. # 16], filed on

February 25, 2010. Plaintiff filed a response [Dkt. # 18] on March 18, 2010; and Defendant filed

a reply [Dkt. # 19] on March 25, 2010. The Court has reviewed the parties’ submissions and finds

that oral argument will not aid in the disposition of the motion. Accordingly, it is ORDERED that

the motion be decided on the papers submitted. E.D. Mich. LR 7.1(e)(2). For the reasons stated

below, Defendant’s motion will be granted.

I

Under Rule 56(c), a court must review “pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,” to conclude that “there is no genuine
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issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The Court must view the evidence and draw all reasonable inferences in favor of the non-moving

party and determine “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). A fact is “material” if its resolution affects the

outcome of the case. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001).

“Materiality” is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th

Cir. 2000). An issue is “genuine” if a “reasonable jury could return a verdict for the nonmoving

party.” Henson v. Nat’l Aeronautics and Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting

Anderson, 477 U.S. at 248). When the “record taken as a whole could not lead a rational trier of fact

to find for the nonmoving party,” there is no genuine issue of material fact. Mich. Paytel Joint

Venture v. City of Detroit, 287 F.3d 527, 534 (6th Cir. 2002).

The party bringing the summary judgment motion has the initial burden of informing the

court of the basis for its motion and identifying portions of the record which demonstrate the

absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover

Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not

“rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact” but must

make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C.

Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary

judgment must designate specific facts in affidavits, depositions, or other factual material showing

“evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

The party who bears the burden of proof must present a jury question as to each element of the
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claim, Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000), rather than raise only “metaphysical

doubt as to the material facts.” Highland Capital, Inc. v. Franklin Nat’l Bank, 350 F.3d 558, 564

(6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986)). Failure to prove an essential element of a claim renders all other facts immaterial for

summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895

(6th Cir. 1991).

II

In 1990, Plaintiff received a Bachelor’s degree in mechanical engineering from Michigan

Technological University. In 1999, he received a Master of Business Administration (“MBA”)

degree from Northwood University. After obtaining his MBA, Plaintiff worked at Delphi, a

company primarily involved in the automotive industry. On or about May 15, 2006, Defendant’s

General Manager and Vice President Greg Younk hired Plaintiff as an engineering manager.

Defendant is a full service mechanical contractor based in Midland, Michigan, that provides process

piping, pipe fitting, welding, plumbing, sheet metal, and related services.

As an engineering manager in Defendant’s employ, Plaintiff was responsible for supervising

project managers, estimators, operators, and quality assurance. Def. Br. Ex. B (No. 0090).

Plaintiff’s primary function was to “provide expertise and assistance in the development of the

necessary information for accurate estimates and drawings to facilitate the development of profitable

quotations.” Id. Plaintiff was also responsible for “overseeing the purchasing functions and the

Project Management of Projects to ensure on-time project completion within budgets, while ensuring

the achievement of the gross profit and sales goals.” Id.
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Throughout his employment, Plaintiff’s performance was evaluated by Younk, as Plaintiff’s

direct supervisor. In a performance review dated December 1, 2006, with respect to “areas of

strengths and improvements,” Younk noted that Plaintiff was “[r]apidly learning the contracting

business. Interacts well with employees & staff. Able to work through obstacles and delegates

effectively. Communicates very well.” Def. Br. Ex. B. (No. 0109). With respect to “areas needing

improvement,” Younk noted that Plaintiff “[n]eeds to be tuned into upcoming projects in order (sic)

forecast estimates. Post project reviews to share opportunities with estimating group. Review of

job costs need to be reviewed more frequently by all P.M’s. Standardize the design/build proposal

process.” Id. (No. 0109-0110).

Subsequently, in the first quarter of 2007, when Defendant’s Executive Vice President, John

Billinghire, began working with Plaintiff, Billinghire testified that he encountered problems with

the information received from Plaintiff’s department. Billinghire Tr. 14, Jan. 29, 2010 (Def. Br. Ex.

D). For example, “projection[s] that the project managers were making seemed to be understated.”

Id. Billinghire testified that he discussed Plaintiff’s performance with Younk and advised Younk

that “he’s got to either get rid of him or turn him around.” Id. 20. While Billinghire felt that

Plaintiff “had a lot of talent,” he thought “some things were misdirected” and that “his performance,

or his commitment” was missing. Id. Younk told Billinghire that he wanted to work with Plaintiff

to give him a chance. Id.

On May 4, 2007, Plaintiff provided written notice to Human Resources Director Dan Ratell

regarding his belief that “I am possibly being leaned on harder or treated unfairly because I observed

and offered an opinion on inappropriate office behavior.” Def. Br. Ex. B (No. 0115). In his note,

Plaintiff recorded that on or about April 2, 2007, Plaintiff observed Billinghire make a comment to
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employee Beth Huntley “about looking good in [a] skirt and whistling at her.” Id. On the evening

of April 13, 2007, at a “get-together,” Plaintiff apologized to Beth about the comments made by

Billinghire. Id. According to Plaintiff, on or about April 16, 2007, Billinghire apologized to Beth

about his behavior. Id.

Plaintiff noted that on April 13, 2007, he received his review, and expressed his belief that

Younk and Billinghire began to treat him differently after he spoke to Huntley about Billinghire’s

comments. Id. In particular, Plaintiff asserted that they threatened to fire Plaintiff for

“undocumented performance issues.” Id. Plaintiff expressed his belief that he was “blamed for

things I did not do (such as miss 6 bids when I feel partly responsible for missing only one) or at

least the situation is being misrepresented to others in the organization.” Id. Consistent with his

written statement, with respect to the six “missed” bids, Plaintiff testified that the estimating group

did not miss the bids, rather, Younk made the “go, no go” decision as to those bids. Pl. Tr. 95, Jan.

28, 2010 (Def. Br. Ex. C). Plaintiff testified that he felt that Younk was “micro managing” the bids.

Id. 96.

Also consistent with his written statement, Plaintiff specifically testified that Billinghire

“started hooting and/or whistling and going woo woo and making those sorts of gestures” towards

Huntley when she “walked in wearing a shorter than usual skirt.” Id. 65. Plaintiff further testified

that Huntley’s “face got red and she walked out of the office.” Id. 66. Plaintiff testified that when

he later apologized to Huntley, she acknowledged that she had been embarrassed. Id. 66.

Nonetheless, Huntley stated in an affidavit that Billinghire did not whistle at her, but told her

that she “looked nice in a skirt.” Huntley Aff. ¶ 6, Feb. 24, 2010 (Def. Br. Ex. J). She stated that

she had received similar compliments from other co-workers and did not consider such comments
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to be “harassing, disrespectful, or sexual in any way.” Id. ¶¶ 6-7. She stated that she told Plaintiff

that he should not be offended and that she told Dan Ratell that she was not offended by the

comment. Id. ¶¶ 8-9; see also Ratell Tr. 6, Jan. 29, 2010 (Def. Br. Ex. K). She told Ratell that she

thought that “Plaintiff was trying to get Mr. Billinghire in trouble because Plaintiff did not like him.”

Huntley Aff. ¶ 12.

Jason Johnson, a project manager and son of company President and Chief Executive Officer

Jim Johnson, stated in an affidavit that he was in Plaintiff’s office when Billinghire “complimented”

Huntley, and he did not perceive the comment as sexual harassment. Jason Johnson Aff. ¶ 9, Feb.

25, 2010 (Def. Br. Ex. I). Billinghire acknowledged telling Huntley on at least two occasions that

she looked good in a skirt, but did not recall whistling at her. Billinghire Tr. 16. Ratell testified that

he did not take any additional actions in response to Plaintiff’s later written notation of events

because he did not think it was “a formal complaint,” but “more of an agreement of some of these

events.” Ratell Tr. 10.

On June 28, 2007, Plaintiff expressed concerns to Younk about working with Billinghire.

Pl. Tr. 97. He thought that Billinghire’s “conservative” or “coercive” style of management was not

effective. Id. Plaintiff also expressed concerns about Billinghire sleeping in meetings and using

“excessive loud profanity.” Id. 98. Plaintiff criticized the fact that Billinghire would hold him

accountable “for things that he didn’t think were right in the group” in front of Plaintiff’s “direct

reports,” such as project managers, which negatively affected the employees’ incentives to listen to

Plaintiff. Id. 99.

In a September 2007 review, Younk gave Plaintiff ratings of four and five, on a scale of one

to five with five being the best, across approximately forty different criteria; and only a three in
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“[m]aintains a neat and orderly work area.” Def. Br. Ex. B. (No. 0118-120). With respect to “areas

of strengths and improvements since last review,” Younk noted that Plaintiff “[h]as improved in

reaction to constructive criticism and suggestions. Engineering/design functions appear to have

been streamlined. Information from project managers has improved.” Id. (No. 0151).

With respect to “areas needing improvement,” Younk noted that Plaintiff needed to “[t]urn

around requested information in a timely fashion. Develop better understanding and comprehensive

information on bid docket. Develop use and understanding of Quickpen software.” Id. Younk

further noted that Plaintiff’s “[o]verall performance has improved. Work with the project managers

to improve project schedules. Institute Microsoft Project cd training and have completed by

February 2008. All project managers need to complete BBP’s Post project review meetings are non

existent. Areas of opportunity exists whereby project issues are communicated back to estimating

group.” Id. After meeting with Plaintiff, Younk clarified that reviews were completed on two

projects. Id.

In a review dated March 28, 2008, Younk rated Plaintiff across eight categories, and gave

Plaintiff a rating of five in one category and a rating of four in four categories. Plaintiff received

a three in the categories of “[d]evelop a procedure to consistently ensure submitted bids are followed

up to determine the status of award and bid ranking,” and “[d]evelop standardize (sic) engineering

procedures for design/build proposals.” Finally, Plaintiff received a two in the category of

“[c]onduct (1) post project review per project manager per month.” Def. Br. Ex. B (No. 0011).

With respect to “areas of strengths and improvements since last review,” Younk noted that

Plaintiff “[h]as settled into the position fairly well. Understand the importance of stretching the

estimating group to ensure proposals are completed. Provides good direction for design engineer
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and runs interference. Has started to become more intimately involved with the estimating process.”

Def. Br. Ex. B. (No. 0173). With respect to “areas needing improvement,” Younk noted that

Plaintiff needed improvement “[h]olding project managers accountable to completing project

documentation as per the company procedures established. Use and understanding of Quickpen

software.” Id. (No. 0173-0174).

Younk further noted that Plaintiff’s “[o]verall performance has improved. Work with project

managers to improve project schedules. Institute Microsoft Project cd training and have completed

by July 2008. All project managers need to complete BBP’s Post project review meetings are non

existent. Areas of opportunity exists whereby project issues are communicated back to the

estimating group.” Id. (No. 0174).

Younk spoke to Plaintiff about the issues raised in his performance reviews, Pl. Tr. 117-20,

but never provided Plaintiff with any written disciplinary actions nor recorded any verbal

disciplinary actions, Younk Tr. 29, Jan. 29, 2010 (Def. Br. Ex. A). Younk testified that at some

point Plaintiff accused Younk of being a micro-manager, to which Younk responded, “if you could

do your job, I wouldn’t have to micro-manage.” Younk Tr. 61.

In the summer of 2008, Tina Getgood, a pregnant employee of Defendant’s, was told by her

doctor that she should not be exposed to fumes in the shop where she was working. Pl. Tr. 78.

Plaintiff believed that Getgood’s experience qualified her to be an engineering assistant, and he

requested to bring her in as his assistant as a way of accommodating her and filling an open position.

Id. 78, 80. Younk testified that he was surprised when Plaintiff proposed placing Getgood in the

assistant engineering position because she did not have the type of experience for which Defendant

was looking. Younk Tr. 45. Similarly, Jason Johnson stated that he never told Plaintiff that he
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agreed that Getgood was the best candidate for the assistant position and, in fact, he agreed with

Younk’s opinion that Huntley, who obtained the position, was “more experienced and better

qualified.” Jason Johnson Aff. ¶ 11.

Plaintiff testified that Younk told him that he did not believe that Defendant was required

to accommodate a pregnant employee. Pl. Tr. 80. Younk did not recall making that statement and

testified that Defendant accommodated Getgood. Younk Tr. 45. Ultimately, Defendant moved

Getgood to work in the shop foreman’s office, away from fumes; and received verification from the

employee’s doctor that the arrangement was satisfactory. Id. 43. After she returned to work,

Getgood was assigned to a position in the field, which she requested. Id.

Meanwhile, after hearing “sounds of ecstasy,” Plaintiff became concerned that Billinghire

was viewing pornography in his office and communicated this concern to Ratell. Ratell testified that

when he spoke to Plaintiff, he did not “take it as a complaint, it was more of a comment, an

observation.” Ratell Tr. 13. When Plaintiff perceived that Ratell did not take any action, he sent

Ratell an email stating:

I confidentially informed you . . . of inappropriate behavior I witnessed by JB a few weeks

back. I would like to know the outcome of looking into it and what will be done to prevent

it from occurring in the future. This is clearly not only disgusting behavior it could create

a company liability if not addressed. Secondly, several people have come up to me (even

though I didn’t inform them of my complaint??) and said that it was not the only occurrence

of similar inappropriate sexual material/behavior observed. I am now concerned that nothing

will be done to correct behavior and I will receive back-lash (similar to last year after

reporting the Beth H. incident) for trying to report clearly inappropriate behavior.

I do not want the issue just dropped.

Pl. Br. Ex. 10 (email dated Sept. 24, 2008). Ratell did not recall responding to Plaintiff’s email.

Ratell Tr. 15.
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Younk testified that he spoke to Billinghire about Plaintiff’s report of him watching

pornography and that Billinghire denied it. Younk Tr. 47-49. Younk did not identify Plaintiff in

the conversation. Id. 51. Billinghire testified that, until just before his deposition, he was not aware

that it was Plaintiff that had made the complaint. Billinghire Tr. 32. Billinghire also denied ever

viewing pornography on his computer at work, but acknowledged that he received the occasional

“risque,” yet unsolicited email from former colleagues. Id. 23-24. Plaintiff testified that another

employee, Brian Maraskine, made similar allegations against Billinghire, Pl. Tr. 37-43, but

Maraskine denies this. Maraskine Aff. ¶¶ 4-9, Feb. 25, 2010 (Def. Br. Ex. L). See also Jason

Johnson Aff. ¶ 13; Siegel Aff. ¶¶ 5-7, Feb. 25, 2010 (Def. Br. Ex. M).

On October 3, 2008, Younk terminated Plaintiff’s employment. Plaintiff testified that when

he was discharged, Younk told him it was “for performance.” Pl. Tr. 33; see also Ratell Tr. 21.

When Plaintiff inquired as to “what performance,” Younk indicated that he did not want to discuss

or debate it because he had made up his mind and the decision was final. Pl. Tr. 33; Ratell Tr. 21.

Younk testified that he ultimately determined that Plaintiff “wasn’t getting the job done.” Id. 60.

At his deposition, Younk gave the following explanation for why he felt that Plaintiff was not

performing up to expectations at the time his employment was terminated:

Again, Marc became protective of his group, he wanted to hold meetings off to the side

without my involvement. I had a lot of people coming to me about him not being a team

player, and there is always a back and forth with regards to whether a project manager

pushes the job and has full responsibility, or if its in operations.

And quite frankly, when you’re trying to get a project done, it’s got to be a team effort

on both sides, but the ultimate responsibility comes down to a project manager, and that was

a big thing with Marc, he wanted to fight that.

In addition to that, there was (sic) projects that Marc took over when one project

manager we hired quit . . . and shop drawings weren’t submitted for approval, equipment

wasn’t ordered on time, projects fell behind, and all the chirping started coming back from

the field from foremen to project managers. And so yeah, he had a good evaluation in
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March, but things became more and more transparent the more I dug into what was really

going on.

Younk Tr. 69.

Consistent with Younk’s testimony, Plaintiff testified to his point of view that “the project

managers were extremely overloaded with work and it was a debate in the way that the company

was structured about the project managers having no control over operations yet being held

accountable for them, for operations performance.” Pl. Tr. 47. Plaintiff clarified that “[t]he project

managers and myself were taking the position that something needed to change in regard to

reporting if the project managers were to be responsible for operations, and [Younk]’s position was

that project managers are responsible for everything regardless of authority. And what I remember

[Billinghire]’s position was that he liked the conflict. . . . [H]e thought it was healthy to have conflict

between operations and project managers.” Id. Plaintiff testified that he expressed his point of view

to Younk and Billinghire and that he suggested structuring the project managers “so that they did

not have responsibility for operations issues.” Id. 50.

Randy Stanford, Defendant’s controller, who oversees financial aspects of Defendant’s

business operation, stated in an affidavit that in the summer of 2008, he expressed frustration to

Younk about Plaintiff’s “lack of urgency, being slow and lack of accepting responsibility.” Stanford

Aff. ¶ 9, Feb. 24, 2010. Stanford stated that he had conversations with Plaintiff “about his not

providing necessary project information and documentation in a timely manner.” Id. ¶ 6. On one

occasion, he told Plaintiff that he needed something within three days, but Plaintiff took thirty days

to provide it and provided it only after Stanford complained to Younk about Plaintiff’s delays. Id.

Stanford also stated that Plaintiff did not facilitate the proper training of project managers on critical

software. Id. ¶ 7.
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Adam Zdrojewski, a sheet metal superintendent for Defendant, provided an affidavit stating

that he also “complained to Greg Younk about the frustrations caused by Plaintiff’s lack of urgency,

being slow, the lack of timely obtaining permits, and lack of accepting responsibility.” Zdrojewski

Aff. ¶ 7, Feb. 4, 2010 (Def. Br. Ex. F). Zdrojewski specifically described a project on which he felt

that Plaintiff had been responsible for incomplete engineering submittals, missed deadlines, and

expensive overtime. Id. ¶ 8. He also stated that Plaintiff did not give him or his co-workers “enough

information so we could have a good understanding of [a] project,” that “Plaintiff’s bids or estimates

were not accurate or double checked,” and that Plaintiff created a “bottleneck.” Id. ¶ 9-10.

Justin Trent, a project manager, provided an affidavit expressing substantially the same

concerns as Zdrojewski. Trent Aff. ¶¶ 6-8, Feb. 22, 2010 (Def. Br. Ex. G). Likewise, Larry Smith,

a project manager who eventually took over Plaintiff’s position, stated that he had concerns

regarding Plaintiff’s “not properly overseeing projects, not providing assistance to project managers,

not providing accurate and timely estimate information, not providing the necessary project

information on time.” Smith Aff. ¶ 7, Feb. 25, 2010 (Def. Br. Ex. H); see id. ¶¶ 6, 8-9. Jason

Johnson echoed the concerns that Plaintiff lacked an appreciation for the “need for prioritization and

urgency.” Jason Johnson Aff. ¶ 3; see also id. ¶¶ 4-8.

Ultimately, Defendant paid Plaintiff four weeks of severance pay and Plaintiff obtained

employment with CDI Corporation in November 2008 as an engineer and in business development.

III

Title VII prohibits retaliation against employees who invoke rights under its provisions. It

provides:

It shall be an unlawful employment practice for an employer to discriminate against any of

his employees . . . because he has opposed any practice made an unlawful employment
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practice by this subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a). At the summary judgment stage, courts employ the framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to analyze retaliation or opposition

claims. See Morris v. Oldham County Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000).

To make out a prima facie case of retaliation under the McDonnell Douglas framework, a

plaintiff must demonstrate that:

(1) [he] engaged in activity protected by Title VII; (2) this exercise of protected rights was

known to defendant; (3) defendant thereafter took adverse employment action against the

plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a

supervisor; and (4) there was a causal connection between the protected activity and the

adverse employment action or harassment.

Id. (citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990)).

In particular, with respect to the fourth element, causation, “a plaintiff must produce

sufficient evidence from which an inference could be drawn that the adverse action would not have

been taken had the plaintiff not filed a discrimination action.” Nguyen v. City of Cleveland, 229 F.3d

559, 563 (6th Cir. 2000) (citations omitted). “[E]vidence that defendant treated the plaintiff

differently from similarly situated employees or that the adverse action was taken shortly after the

plaintiff’s exercise of protected rights is relevant to causation.” Id. (citation omitted). Nonetheless,

“temporal proximity between the protected activity and the adverse action, in and of itself, is [not]

sufficient to establish a causal connection.” Id. at 566 (citing Cooper v. City of N. Olmsted, 795 F.2d

1265 (6th Cir. 1986)). “[O]ther compelling evidence” is required. Id. (quotation omitted).

After a plaintiff establishes a prima facie case of retaliation, the defendant may rebut the

plaintiff’s prima facie case by articulating a “legitimate, non-discriminatory reason” for the adverse

employment action. Morris, 201 F.3d at 792-93 (citations omitted). Finally, “[t]he plaintiff, who
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bears the burden of persuasion throughout the entire process, then must demonstrate ‘that the

proffered reason was not the true reason for the employment decision.’ ” Id. at 793 (quotations

omitted). “A plaintiff may demonstrate that an employer’s proffered legitimate reason for an

adverse employment action is pretextual on any of three grounds: 1) by showing that the reason has

no basis in fact; 2) by showing that the reason did not actually motivate the employer’s action; or

3) by showing that the reason was insufficient to motivate the action.” Macy v. Hopkins County Sch.

Bd. of Educ., 484 F.3d 357, 366 (6th Cir. 2007) (citing Manzer v. Diamond Shamrock Chems. Co.,

29 F.3d 1078, 1084 (6th Cir. 1994)). “A reason cannot be proved to be ‘a pretext for discrimination’

unless it is shown both that the reason was false, and that discrimination was the real reason.” St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

Defendant contends that Plaintiff cannot establish the first and fourth elements of a prima

facie case, nor can he establish pretext. Defendant also argues that Plaintiff cannot establish a claim

for retaliatory harassment by demonstrating that he was subjected to severe or pervasive harassment.

Plaintiff did not respond to this argument and expressly concedes that he has not stated a “retaliatory

harassment” claim. Pl. Br. 18 n.6.

First, Defendant contends that Plaintiff’s expression of “opposition” to Billinghire’s

comment to Huntley regarding her skirt, Billinghire’s alleged viewing of pornography, and

Defendant’s refusal to accommodate Getgood’s pregnancy does not amount to “protected activity”

because it was not opposition to “any practice made an unlawful employment practice” under Title

VII. Defendant contends that these incidents do not rise to the level of creating a “hostile work

environment” within the meaning of Title VII, citing Grace v. USCAR, 521 F.3d 655, 678 (6th Cir.
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2008) (“[T]he conduct must be so severe or pervasive as to constitute a hostile or abusive working

environment both to the reasonable person and the actual victim.”) (quotations omitted).

In response, Plaintiff does not dispute that the conduct does not rise to the level of creating

a “hostile work environment.” Instead, Plaintiff contends that he engaged in “protected activity”

because “a violation of Title VII’s retaliation provision can be found whether or not the challenged

practice ultimately is found to be unlawful.” Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579-80

(6th Cir. 2000) (citing EEOC Compliance Manual, (CCH) ¶ 8006); Booker v. Brown & Williamson

Tobacco Co., 879 F.2d 1304, 1312-13 (6th Cir. 1989) (“A person opposing an apparently

discriminatory practice does not bear the entire risk that it is in fact lawful.”). Ultimately, it is

required that “the manner of opposition must be reasonable, and that the opposition be based on ‘a

reasonable and good faith belief that the opposed practices were unlawful.’ ” Id. at 579 (quoting

EEOC Compliance Manual, (CCH) ¶ 8006). An employee’s chosen manner of opposition may not

be reasonable when it “violates legitimate rules and orders of his employer, disrupts the employment

environment, or interferes with the attainment of his employer’s goals.” Booker, 879 F.2d at 1312.

Plaintiff contends that there is at least a genuine issue of material fact as to whether Plaintiff

had a “reasonable and good faith belief that the opposed practices were unlawful” based on the

following: Ratell testified that Plaintiff seemed concerned when he made his complaint regarding

Billinghire viewing pornography. Ratell Tr. 12-13. Plaintiff’s September 28, 2008, email to Ratell

also evidences Plaintiff’s belief that Billinghire’s alleged behavior was “completely inappropriate”

and could have legal implications for Defendant. Pl. Br. Ex. 10. Indeed, Ratell testified that, if true,

Plaintiff’s complaints fell within Defendant’s sexual harassment policy. Ratell Tr. 7, 12-13.

Defendant did not reply to Plaintiff’s argument regarding his “reasonable and good faith belief.”
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Based on the fact that Plaintiff must only demonstrate a “reasonable and good faith belief

that the opposed practices were unlawful,” Plaintiff has raised a genuine issue of material fact as to

whether Plaintiff engaged in “protected activity” to satisfy the first element of a prima facie case.

Defendant is not entitled to summary judgment on this ground. Although it is questionable whether

Plaintiff’s comments or reporting of perceived gender discrimination or sexual harassment constitute

“opposition” within the meaning of Title VII, Defendant did not raise the issue. See Booker, 879

F.2d at 1313 (finding that “a vague charge of discrimination in an internal letter or memorandum

is insufficient to constitute opposition . . . [o]therwise, every employment decision by an employer

would be subject to challenge under . . . civil rights legislation . . . [and] would constitute an

intolerable intrusion in the workplace”).

Second, Defendant contends that Plaintiff cannot establish a causal connection between any

protected activity and Defendant’s termination of Plaintiff’s employment. Defendant emphasizes

that there is no evidence that any employee of Defendant made hostile comments towards Plaintiff

regarding his reporting of what he perceived as inappropriate behavior. Defendant further contends

that it responded in good faith to Plaintiff’s concerns by investigating Billinghire’s comments to

Huntley and alleged viewing of pornography. Defendant emphasizes that it accommodated

Getgood’s pregnancy and that both Getgood and Huntley continue to work for Defendant.

In response, Plaintiff contends that he can establish a causal connection because temporal

proximity is sufficient. Plaintiff relies on Mickey v. Zeidler Tool & Die Co., wherein the Sixth

Circuit explained that in a “limited number of cases . . . where an employer fires an employee

immediately after learning of a protected activity, we can infer a causal connection between the two

actions.” 516 F.3d 516, 525 (6th Cir. 2008). In Mickey, the morning of the day that the employer
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learned of the plaintiff’s EEOC charge, an employee of the defendant following the plaintiff “into

his office, told him that he was laid off, and that he should pack up his things.” Id. While the court

did not rely on other facts, it noted that a reduction in the plaintiff’s salary and benefits earlier that

year along with occasional inquiries regarding the plaintiff’s retirement plans “constitute sufficient

additional circumstantial evidence” of retaliatory discrimination. Id. at 526.

Plaintiff emphasizes that in Johnson, the Sixth Circuit found that the plaintiff established a

causal connection when he was discharged from his position as Vice President of Human Resources

and Human Relations one month after he filed an EEOC charge and had strong evaluations prior to

the filing of the charge. 215 F.3d at 582-83. Plaintiff emphasizes that Defendant terminated his

employment only nine days after his September 28, 2008 email to Ratell regarding his concerns,

Plaintiff’s evaluations were good prior to his discharge, and Plaintiff was never formally disciplined.

However, Johnson is distinguishable from the instant case because Plaintiff’s performance

reviews, while consistently good, also consistently documented performance issues that are

corroborated by the affidavits and testimony of numerous of Defendant’s employees. More

importantly, in Johnson, there was circumstantial evidence beyond temporal proximity and the

plaintiff’s strong evaluations to support the plaintiff’s claims of retaliatory discrimination based on

his opposition to what he perceived to be the defendant’s unlawful hiring practices. In particular,

the plaintiff was “excluded from a retreat where many other human resource administrators met to

discuss [a] merger,” the defendant had resisted the plaintiff’s efforts to hire minorities, the plaintiff

received a negative evaluation after he filed an EEOC complaint, and the plaintiff’s employment was

terminated immediately after he accused the employer of giving him a negative evaluation in

retaliation for his EEOC complaint. 215 F.3d at 581, 583.
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Here, Plaintiff has not produced sufficient evidence to support an inference that Defendant

would not have terminated his employment had he not complained about the conduct that he

perceived to be gender discrimination or sexual harassment. See id. at 582 (explaining that the

plaintiff must “put forth some evidence to deduce a causal connection between the retaliatory action

and the protected activity [which requires] the court to draw reasonable inferences from that

evidence, providing it is credible”) (quoting EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th

Cir. 1997)). Thus, Defendant is entitled to summary judgment because Plaintiff cannot establish the

fourth element of a prima facie case.

Third, assuming that Plaintiff can establish a prima facie case, Defendant argues that Plaintiff

cannot demonstrate that Defendant’s stated issues with his performance were merely pretext for

discrimination. Defendant highlights the fact that Plaintiff’s “[m]ere personal beliefs, conjecture

and speculation are insufficient to support an inference of . . . discrimination.” Wexler v. White’s

Fine Furniture, Inc., 317 F.3d 564, 584 (6th Cir. 2003). Defendant focuses on the fact that Plaintiff

“must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the

proffered non-discriminatory reason for its adverse employment action.” Braithwaite v. Timken Co.,

258 F.3d 488, 494 (6th Cir. 2001); Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106,

1117 (6th Cir. 2001) (“[A]s long as an employer has an honest belief in its proffered

nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason

was pretextual simply because it is ultimately shown to be incorrect.”). Finally, Defendant

emphasizes that “[t]he soundness of an employer’s business judgment . . . may not be questioned

as a means of showing pretext.” Brocklehurst v. PPG Indus., 123 F.3d 890, 898 (6th Cir. 1997).
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Defendant specifically relies on Koval v. Dow Jones & Co., wherein the discharged plaintiff

had a history of positive evaluations, but also criticism that he “was territorial and did not work well

with people in other departments.” 86 F. App’x 61, 69-71 (6th Cir. 2004). While the plaintiff had

shown improvement at various times, “the matters cited by defendants as supporting the discharge

justification occurred after these positive evaluations.” Id. at 71. The court concluded that it was

reasonable for the employer to deduce, in light of recent specific events and past criticism, that the

plaintiff “was again exhibiting negative and territorial leadership traits.” Id. Thus, the employer

held an “honest belief” in its discharge rationale and there was no evidence to suggest that the belief

did not motivate the discharge decision. Id.

In response, Plaintiff notes that the Sixth Circuit has found that an employer’s changing

rationale for an employee’s discharge is evidence of pretext, citing Cicero v. Borg Warner, 280 F.3d

579, 591 (6th Cir. 2002). Plaintiff does not actually argue that Defendant’s rationale has shifted, but

essentially argues that this Court should extend that principle in a manner similar to the Seventh

Circuit Court of Appeals in Fischer v. Avanade, Inc., 519 F.3d 393 (7th Cir. 2008). In Fischer, the

court found that a declaration by defendant’s employee setting forth, for the first time, a rationale

for defendant’s employment decision raised “credibility concerns” and “a genuine issue of material

fact as to whether th[e] justification is a later fabrication.” 519 F.3d at 407. The court found it

significant that the plaintiff had unsuccessfully sought an explanation from defendant’s human

resources department and that the employee who wrote the subsequent declaration did not offer the

rationale at his deposition. Id.

Here, Plaintiff emphasizes that he asked Younk for the specific reason for his discharge when

it occurred and that Younk refused to answer. Plaintiff contends that even Younk’s explanation at
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his deposition was “generic,” and that Defendant only sets forth “after-the-fact reasons” for

Plaintiff’s discharge in its motion for summary judgment.

In reply, Defendant emphasizes that unlike in Fischer, Plaintiff was informed that he was

being discharged based on his performance. In addition, contrary to Plaintiff’s assertions, Younk’s

deposition testimony regarding issues with Plaintiff’s performance is fairly detailed, as are his

performance reviews, about which Plaintiff acknowledged Younk spoke to him. Defendant also

emphasizes that unlike here, in Cicero, the defendant employer never raised any complaints about

the plaintiff’s performance until after it fired him and “showed no contemporaneous evidence that

any failures by Cicero caused it concern.” 280 F.3d at 591.

Neither Fischer nor Cicero are analogous to the facts of the case at hand because Defendant

has consistently explained that Plaintiff was discharged based on his job performance. While

Plaintiff has disputed whether certain problems should have been attributed to his performance,

rather than to the structure and management of the company, it is undisputed that Defendant

consistently held Plaintiff responsible for those problems. Although Younk simply advised Plaintiff

that “performance” was the reason for his termination at the time of his termination, Younk’s

response is necessarily viewed in light of the prior discussions between Younk and Plaintiff

regarding performance issues. Moreover, Younk’s deposition provides specific examples and

details, as do several affidavits of other employees of Defendant. Based on the above, Defendant

is entitled to summary judgment because Plaintiff has not advanced sufficient evidence to

demonstrate that Defendant’s reason for discharging Plaintiff was pretextual.
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IV

Accordingly, it is ORDERED that Defendant’s motion for summary judgment [Dkt. # 16]

is GRANTED.

It is further ORDERED that the hearing scheduled for April 29, 2010, is CANCELED.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: April 30, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on April 30, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS