UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

ERIC STEPHENSON,

Plaintiff, Case Number 09-cv-12267

Honorable Thomas L. Ludington

 v.

AMSTED INDUSTRIES INC.,

d/b/a Means Industries, Inc.,

Defendant.

_______________________________________/

ORDER OVERRULING PLAINTIFF’S OBJECTIONS, ADOPTING REPORT AND

RECOMMENDATION, GRANTING DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT AND DISMISSING COMPLAINT WITH PREJUDICE

On July 9, 2010, Defendant Amsted Industries d/b/a Mean Industries’ (“Means”) motion for

summary judgment [Dkt. # 12] was referred to United States Magistrate Judge Charles E. Binder

for report and recommendation. Judge Binder issued a report and recommendation on Defendant’s

motion on October 13, 2010 [Dkt. # 22]. In his report, Judge Binder recommended granting

Defendant’s motion for summary judgment because Plaintiff Eric Stephenson did not demonstrate

a prima facie case of race discrimination under 42 U.S.C. § 1981 and the Michigan Elliot Larsen

Civil Rights Act, M.C.L. § 37.2101 et seq. Alternatively, Judge Binder recommended that even if

Plaintiff were able to establish a prima facie case of discrimination, Defendant has provided a

legitimate, nondiscriminatory reason for termination of Plaintiff’s employment and Plaintiff has not

provided evidence showing that Defendant’s proffered reason was a pretext for discrimination.

Finally, Judge Binder recommended that Plaintiff did not advance a prima facie case of retaliation

under 42 U.S.C. § 1981. On October 27, 2010, Plaintiff timely filed an objection to Judge Binder’s

report and recommendation [Dkt. # 23]. Defendant filed a response on November 9, 2010 [Dkt. #

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24]. 

The Court has reviewed the report and recommendation, and agrees that Plaintiff has not

demonstrated a prima facie case of race discrimination or retaliation and that, alternatively,

Defendant has proffered a legitimate, nondiscriminatory reason for Plaintiff’s termination which

Plaintiff has not shown to be a pretext for discrimination. Accordingly, the Court will overrule

Plaintiff’s objections, adopt Judge Binder’s report and recommendation, grant Defendant’s motion

for summary judgment, and dismiss Plaintiff’s complaint with prejudice.

I

Defendant manufactures transmissions and other precision fabricated stamping and welding

components in Saginaw, Michigan. Plaintiff began working for Defendant in July 1997 as a machine

operator. After completing his 90-day probationary period, he became a union member, giving him

access to the grievance process provided for in the collective bargaining agreement between

Plaintiff’s union and Means. Plaintiff held a number of positions while at Means including a tapping

weld position, an I-shaft operator, a saw operator, a maintenance press operator, press operator, and

a tap and weld tech operator. 

Plaintiff received a total of ten disciplinary actions in his record during his employment at

Means, two of which involved intimidation, coercion or threatening of an employee. During

Plaintiff’s last full year of employment, two minor disciplinary actions were undertaken, which

included a written reprimand for habitual tardiness or leaving early in August 2007 and a verbal

warning notice for damaging a die in December 2007. Plaintiff did not submit any harassment or

discrimination complaint forms as a result of any of the disciplinary actions.

Plaintiff did, however, file two grievances on November 7, 2005. The first grievance alleged

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that Plaintiff felt he was being racially discriminated against regarding job assignment. Means

denied the grievance, finding that Plaintiff was chosen for cross-training and position changes due

to seniority and business practice decisions. Plaintiff’s union did not dispute Means’ determination

and the matter was not submitted to arbitration. The second grievance alleged that Plaintiff’s

concurrent three-day suspensions, after he threatened and intimated his female supervisor on

October 27, 2005, were excessive. The second grievance was eventually resolved between Means

and Plaintiff’s union. 

Plaintiff subsequently filed a charge of discrimination with the Michigan Department of Civil

Rights (“MDCR”) on November 28, 2005 and December 14, 2005. The first charge alleged that

Plaintiff was discriminated against on the basis of race regarding job assignments and further alleged

that Plaintiff was discriminated against and retaliated against when he was suspended on October

27, 2005 for complaining about being assigned to work at another plant. MDCR dismissed

Plaintiff’s first charge. On December 14, 2005, Plaintiff filed a second charge of discrimination with

the MDCR. This charge alleged that Means discriminated against Plaintiff based on his race when

it denied his request for an emergency vacation day to seek medical attention. Plaintiff voluntarily

withdrew his second charge in January 2006. Plaintiff’s next disciplinary action was not until almost

two years later when he received a written reprimand for habitual tardiness on August 16, 2007.

On August 29, 2007, Plaintiff’s supervisor, Jim Brinkman, asked Plaintiff to change places

on the sorting line so a more experienced sorter could sort the parts for defects first after a customer

requested that Means improve the visual quality of the parts it was receiving. Plaintiff and

Brinkman began arguing about the move on the sorting line, and during the confrontation,

Brinkman’s hand made contact with Plaintiff’s chest. Brinkman alleges that one of his fingers

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A desiccant bag is a square bag that is placed inside the middle of a product to prevent rust

damage to the part. (Def.’s Mot. for Summ. J. Ex. B at 89, 91.)

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inadvertently touched Plaintiff but Plaintiff alleges that Brinkman punched him. Brinkman then

apologized, and Plaintiff accepted his apology. Plaintiff did not file a harassment or discrimination

complaint alleging race discrimination as a result of the altercation but Means nonetheless

investigated the incident. After speaking with individuals who were present, Theresa DieboldJankowiak, the Personnel Specialist, and Richard Kobman, the Plaint Manager, concluded that

Brinkman’s touching Plaintiff was inadvertent.

On February 23, 2008, Plaintiff noticed that the desiccant bags1

 on his work tables were

closed during an overtime shift. After seeking an answer as to why his bags were closed, a coworker,

Melissa Wittkopp, informed Plaintiff that Brinkman had closed the desiccant bags. Plaintiff stated

that “Brinkman should not be touching ‘his stuff’.” Plaintiff also stated that he was going to “punch

[Brinkman] in his . . . face” and that he was “going to get his gun and blow [Brinkman’s] . . . brains

out.” (Def.’s Mot. for Summ. J. Ex. CC; Ex. DD.) Witkopp advised Plaintiff not to speak that way

and he responded that it was alright to say what he had because he did not mention anyone’s name.

(Def.’s Mot. for Summ. J. Ex. CC.) When Witkopp continued her criticism, Plainitff told her that

he was going “blow [her] brains out.” (Id.) During Plaintiff’s altercation with Witkopp, Brinkman

arrived and heard Plaintiff tell Witkopp two additional times that he was going to blow her head off.

Brinkman then intervened in an attempt to diffuse the situation and a press operator also came over

to help in calming Plaintiff down.

Shortly after the altercation, Brinkman radioed for Tom Stafford, the afternoon Shift

Superintendent, to come over and assist with the situation. Stafford brought a union representative,

Stephen Wilding, and the two men began investigating what had transpired. During their

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investigation, Stafford and Wilding interviewed Plaintiff, Wittkopp, and Brandy Rousseau, who was

also present during the altercation. The next day Means’ Operations Manager, Walt Lewtschanyn,

advised Kobman that Plaintiff should be suspended from work as a result of the February 23 incident

and Kobman agreed. During Plaintiff’s suspension, Diebold-Jankowiak collected signed statements

from Wittkopp and Rousseau after interviewing them regarding the February 23 incident with their

union representative present. Diebold-Jankowiak then called Plaintiff on February 25, 2008,

informing him that he was suspended pending an investigation and that he should not report to work

for his afternoon shift. Despite this instruction, Plaintiff still arrived at his afternoon shift and

refused to leave the facility. Diebold-Jankowiak called the police for assistance in removing

Plaintiff from the facility, but Plaintiff left before the police arrived.

Means received a statement from Plaintiff’s union representative regarding the February 23

incident on February 25, 2008. Plaintiff told his union representative that he “may have raised his

voice” and made the remark “this is why you see things like this on the TV/News about people

coming into their workplace and being shot.” (Def.’s Mot. for Summ. J. Ex. GG.) Plaintiff was

scheduled to appear at Means for an interview regarding his version of the February 23 events, but

he refused to appear. Means then sent Plaintiff a notice informing him that an investigation hearing

was scheduled for February 29, 2008. Plaintiff subsequently requested that the interview be

conducted via telephone, and Means agreed. Plaintiff was interviewed by Gluski and Bill Waters

on February 29, 2008. During the interview, Plaintiff denied responsibility for any misconduct and

did not offer a reasonable explanation for his actions. In explaining why the other individuals had

provided false stories about the incident, Plaintiff alleged that Wittkopp was delusional and that

Rousseau had partied too hard the night before to remember what happened. (Def.’s Mot. for Summ.

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J. Ex. FF.) 

As a result of the investigation of the February 23 incident, Gluski and Diebold-Jankowiak

concluded that Plaintiff’s employment should be terminated. They came to this conclusion after

considering the seriousness of the rules violation, and the safety of other plant employees, as well

as striving to maintain consistency with past handling of employee threats. On March 3, 2008,

Means sent Plaintiff a letter terminating his employment. Two days later, Plaintiff and his union

filed a grievance challenging Plaintiff’s suspension and termination. The grievance does not allege

that Plaintiff’s termination was racially discriminatory or retaliatory. The grievance went before an

arbitrator on July 23, 2008, and during the arbitration hearing Plaintiff stated that he did not believe

the allegedly false accusations were made against him because he was African-American. The

arbitrator issued an opinion and award on September 10, 2008, denying Plaintiff’s grievance and

upholding his suspension and termination for just cause. Plaintiff then filed his complaint in this

Court alleging race discrimination and retaliation, alleging that “the reasons for termination were

wholly pretextual in nature.” (Id. ¶ 14.) Plaintiff contends that the real reason for his termination was

retaliation for complaints he made to the MDCR on November 28, 2005. (Id. ¶ 16.)

II

In his objections, Plaintiff largely restates his arguments from his response to Defendant’s

motion for summary judgment. Although Plaintiff makes a number of brief objections in his

introduction, he only discusses two specific objections in his brief. Plaintiff first objects to Judge

Binder’s recommendation that Plaintiff has not provided evidence that Defendant’s proffered

reasons for his termination were pretextual. Plaintiff supports this contention with the same

arguments provided in his response to Defendant’s motion for summary judgment. Specifically,

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Plaintiff’s protected activities include filing a complaint with the Michigan Department of

Civil Rights (“MDCR”) for race discrimination while employed by Defendant and making frequent

and repeated complaints of race discrimination and racially motivated ill-treatment to Defendant.

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Plaintiff contends that he did not threaten to kill or harm anyone, undermining Defendant’s decision

which Plaintiff believes was motivated by race-based animosity resulting from his accusing his

superior of racism in the past. 

Plaintiff also asserts that there is a “clear history” of animosity between he and his superior,

Jim Brinkman, of which Plaintiff contends that Bruce Gluski, Means’ Corporate Director of Human

Resources, was aware. Additionally, Plaintiff asserts that Gluski testified in his deposition that

Plaintiff’s race was considered in coming to the decision to terminate his employment. This, coupled

with what Plaintiff characterizes as Gluski admitting to breaching polices and procedures in not

investigating Plaintiff’s allegations of race discrimination constitute evidence of pretext. DeBoer v.

Musashi Auto Parts, Inc., 124 F. App’x 387 (6th Cir. 2005). 

Plaintiff also objects to Judge Binder’s finding that he has not established a retaliation claim

under 42 U.S.C. § 1981. Plaintiff notes that he has provided evidence not only of the temporal

relationship between his protected activities2

 and his termination, but has also provided evidence that

Brinkman demonstrated hostility towards Plaintiff after he was accused of discriminating against

him on the basis of race. Plaintiff asserts that Gluski’s deposition testimony regarding the company’s

policies and procedures and his investigation into Plaintiff’s complaints demonstrate Gluski’s

hostility towards Plaintiff as well. Plaintiff states that he was also required to drop an earlier

discrimination complaint in order to continue his employment with Defendant. 

Plaintiff, however, mischaracterizes Gluski’s deposition testimony that he cites as evidence

that Defendant’s explanation for the termination of his employment was pretextual. In his

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deposition, Gluski stated that in coming to the decision to terminate Plaintiff’s employment, he and

another individual discussed the need to be consistent with disciplinary actions but did not use the

word “race” in this discussion. (Pl.’s Resp. to Def.’s Mot. for Summ. J. Ex. 5.) Furthermore, Gluski

outlined the policies and procedures for investigating allegations of discrimination during his

deposition, and stated that when investigating Plaintiff’s allegations of discrimination he might not

have necessarily asked Plaintiff why he thought race was a factor in his treatment during the course

of his investigation. (Id.) Gluski testified that he thought following “where the trail leads” was more

helpful than speaking with Plaintiff because of the volume of his complaints and the incoherent

responses that had been received in the past. (Id.) 

 The conclusory objections about claims and legal rights made in Plaintiff’s introduction do

not identify any specific errors that merit review because they are not clear enough to enable the

Court to discern what is being communicated. Slater v. Potter, 28 F. App’x 512, 513 (6th Cir. 2006);

Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). As to the two objections Plaintiff discusses in his

brief, Plaintiff does not assert that Judge Binder misapplied the law, failed to consider any evidence,

misconstrued any evidence, or gave inappropriate weight to any evidence. Plaintiff’s objections

simply reassert arguments made in his response to Defendant’s motion for summary judgment and,

in doing so, misconstrues Gluski’s deposition testimony on which he places significant reliance.

The Court agrees with Judge Binder’s analysis, and Plaintiff’s objections do not undermine

the analysis. Plaintiff asserts, largely based on his mischaracterization of Gluski’s deposition

testimony regarding investigation into Plaintiff’s complaints of discrimination, that he has provided

evidence that Means’ legitimate, non-discriminatory reasons for his termination were pretext.

Plaintiff also reasserts that he did not make any threats to other employees, but he has not produced

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any witnesses to corroborate this assertion. Plaintiff’s denial that a death threat was made and his

challenge to the adequacy of Means’ investigation into his discrimination complaints are insufficient

to establish pretext for discrimination. Hugley v. Art Institute of Chicago, 3 F. Supp. 2d 900 (N.D.

Ill. 1998). Defendant, however, relied on the incident reports from three of its employees who were

present in deciding to terminate Plaintiff’s employment. Plaintiff has not provided evidence that

Means’ lacked an honest and reasonable belief in its proffered non-discriminatory reasons for his

termination. Accordingly, the Court will overrule Plaintiff’s objection. 

Judge Binder also correctly stated that the elements of a prima facie case of retaliation under

42 U.S.C. § 1981 are: (1) the employee engaged in protected activity; (2) the defendant knew that

the employee engaged in protected activity; (3) the defendant subsequently took an adverse

employment action against the employee; and (4) the adverse action was causally related to the

protected activity. Ladd v. Grand Trunk W. R.R., 552 F.3d 495, 502 (6th Cir. 2009). The Court

agrees with Judge Binder’s analysis concluding that Plaintiff cannot satisfy the fourth element of

a prima facie case of retaliation, and Plaintiff’s objections do not undermine this analysis. Plaintiff’s

objections recite the “bits of deposition testimony regarding ‘hostility’ ” which Judge Binder found

unpersuasive in establishing a causal connection between Plaintiff’s filing charges with the MDCR

in 2005 and his termination in 2008. As a result, the Court will overrule Plaintiff’s objections.

II

Accordingly, it is ORDERED that Plaintiff’s objections [Dkt. # 23] are OVERRULED.

It is further ORDERED that Judge Binder’s report and recommendation [Dkt. # 22] is

ADOPTED.

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It is further ORDERED that Defendant’s motions for summary judgment [Dkt. # 12] is

GRANTED.

It is further ORDERED that Plaintiff’s complaint [Dkt. #1] is DISMISSED WITH

PREJUDICE.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: March 1, 2011

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 March 1, 2011

s/Tracy A. Jacobs 

TRACY A. JACOBS

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