Report and Recommendation

Motion for Summary Judgment 1 Crawford v. Aeroteck; 09-12932

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BENNITA CRAWFORD, Case No. 09-12932

Plaintiff, Stephen J. Murphy, III

vs. United States District Judge

AEROTEK, INCORPORATED, Michael Hluchaniuk

United States Magistrate Judge

Defendant.

____________________________/

REPORT AND RECOMMENDATION

MOTION FOR SUMMARY JUDGMENT (Dkt. 33)

I. PROCEDURAL HISTORY

Plaintiff filed a charge with the Equal Opportunity Employment

Commission on October 8, 2008, alleging that the defendant had engaged in

discriminatory conduct against her. Plaintiff filed an initial complaint in Federal 

District Court on July 24, 2009, alleging sexual harassment, racial intimidation, 

failure to promote or train, and a hostile work environment, all of which are

violations of Title VII of the Civil Rights Act of 1964. (Dkt. 1). This matter was

referred to the undersigned for all pretrial proceedings on March 29, 2010, by

District Judge Stephen J. Murphy III. (Dkt. 6). Plaintiff’s second amended

complaint, which is the controlling complaint also included a claim of workplace

retaliation. (Dkt. 21). Defendant filed a motion for summary judgment on April

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13, 2011. (Dkt. 33). Plaintiff filed a response on May 9, 2011. (Dkt. 35). A reply

to that response was filed by defendant on June 8, 2011. (Dkt. 37). Pursuant to

notice, a motion hearing was held regarding defendant’s motion for summary

judgment on May 8, 2011. (Dkt. 34). This matter is now ready for report and

recommendation.

For the reasons below, the undersigned RECOMMENDS that defendant’s

motion for summary judgment be GRANTED, and that the plaintiff’s complaint

be DISMISSED with prejudice.

II. FACTUAL BACKGROUND

Bennita Crawford began employment with Aerotek on February 14, 2007

(Dkt. 33-4). Her employment agreement specified that her rate of pay would be

$10.50 per hour. The employment agreement specified a number of other terms or

conditions, relating to insurance plan options, vacation days, and conditions

relating to attendance. Specifically, it provided that her position as a receptionist

required her to be on time and that excessive tardiness could result in termination

of her employment. Id. 

Crawford alleges that she was subjected to various forms of harassment and 

discrimination during her tenure at Aerotek. She claims that a co-worker refused

to train her and that she was ineligible for a promotion because she did not have

the proper skills that would have been acquired if she had been properly trained. 

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(Dkt 25, p. 8). Crawford asserts that employees of Aerotek intentionally refused

to train her because of her race. (Dkt. 21, p. 2). Specifically, she alleges that

Jolene Brozkowski, the employee who was supposed to train her, spent time

drinking alcohol with other employees and fraternized with the same men who

sexually harassed plaintiff. (Dkt. 25, p. 8). Plaintiff claims that the general

corporate culture was similar to that of a fraternity, and that it is undisputed that

employees at Aerotek drank alcohol on more than one occasion in the office. It is

also alleged by various Aerotek employees that plaintiff also drank alcohol in the

office and did not object or seem to feel uncomfortable in any way. (Dkt. 33,

p.13). 

Disciplinary action was taken against plaintiff in the form of oral and

written warnings. She had been late to work, and took an excessive number of

days off. (Dkt. 33, p. 12). According to Aerotek, plaintiff’s disciplinary action

regarding her absenteeism disqualified her from any promotion and whether or not

she was trained would not have mattered. Id. Plaintiff alleges that defendant was

simply “building a case against her” and that she was subjected to disciplinary

action when other employees had similar attendance issues but were never

formally disciplined. (Dkt. 35-2, p. 35). Plaintiff states that the company was

building a case against her as a pretext to terminate her employment. Crawford

also asserts that she was eventually required to submit documentation of her

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medical visits, a policy which was initiated solely for her. (Dkt. 35-2, p. 44). In

her deposition, plaintiff claimed that a supervisor suggested that she take

advantage of the Family Medical Leave Act because she was missing so much

work. According to plaintiff, her supervisors made this suggestion as a pretext

just to get her out of the office and that her position would be eliminated when or

if she ever tried to return to work. (Dkt 33-2, p. 36). 

Defendant issued formal written warning to plaintiff for an incident that

occurred relating to a request for time off. Plaintiff requested a half day off for her

child’s birthday on November 20, 2008, and her request was denied by her

supervisor, Karen Philbrick, for the stated reason that there simply was no other

staff to cover for her absence. Crawford allegedly became incensed at this denial,

used profanity, acted in an unprofessional manner, and insisted that she would still

be taking a half a day off. (Dkt. 33-23). 

Plaintiff asserts that from a period of May 2008 to August 2008 she was

subjected to embarrassing sexual comments from another employee, Nathan

Johanson. Specifically, plaintiff claims that Johanson called her a “trick,” a slang

term for prostitute, made inappropriate comments about her breasts, and claimed

that she had a nice “swag” when coming into work. (Dkt. 35, p. 8). Johanson

denies these allegations. (Dkt. 33-13, p. 14). Plaintiff also alleges that she was

sexually assaulted during a company quarterly outing held at Gator Jake’s,

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sometime in 2007. Plaintiff specifically alleges that Joseph Jacobs, an employee

of Aerotek at the time, followed her outside the bar, opened the passenger side

door when she unlocked it, and attempted to rip her clothes off, and wanted her to

give him oral sex. (Dkt. 33-2, p. 26). These allegations were not reported in the

formal report she made to Reid Higley, Aerotek’s Employee Relations Manager. 

Jacobs denies that this incident happened. (Dkt. 33-14, p. 13). 

Plaintiff also alleges that Aerotek knowingly allowed a hostile work

environment to exist based on racial intimidation. Specifically, that another

employee of Aerotek harbored racist views of plaintiff, which in turn caused a

hostile working environment. (Dkt. 35-2, p. 21). 

On August 12, 2008, Crawford made a formal written complaint of sexual

harassment to Higley, the Employee Relations Manager. An investigative report

was filed on August 20, 2008 detailing interviews between Higley and various

employees at the Troy Office. Higley also met with Crawford at the Hyatt hotel in

Troy. Based on his investigation, Higley made the conclusion that this was largely

a case of “he said, she said.” Higley concluded that alcohol was brought into the

office on several occasions and that discipline was warranted as to those

individuals. Higley concluded that the “trick” comment did occur, but it is not

clear in what context; it may have been a completely innocent comment, but could

have been interpreted in a negative light. Higley recommended that Crawford be

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given several options that would ensure that she would be working in a safe

environment. One, she could stay in the current office, but move across the hall so

she would not have to come into contact with her co-workers. Two, she was

offered an option to be transferred to the Southfield office. Lastly, she was offered

to transfer back to the Warren office. She chose to transfer back to the Warren

office, which was formally completed as of August 28, 2008. (Dkt. 33-12, p. 5). 

Plaintiff was ultimately separated from the company involuntarily on

December 31, 2008. The entire Warren office was closed and the stated reason for

her termination of employment was simply that no position was available for her. 

(Dkt. 33-18). The decision to close the Warren office was made by Mike Hansen

and Steve Forman. In his declaration, Hansen states that there were two

administrative support positions at the Warren office (one being Bennita

Crawford), and that both positions were eliminated as a result of the closure of the

Warren office. Hansen states that 11 other administrative positions were

eliminated as of March 2009, and that at the Troy office, only one administrative

support position still existed, and that position was held by a female

African-American employee. Hansen also states that Aerotek had received an

85% decline in temporary contract workers, and that over 73% of the

administrative support positions eliminated in the state of Michigan were held by

white workers. Plaintiff alleges that any such justification by Aerotek is merely

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7 Crawford v. Aeroteck; 09-12932

pretextual, and that she was also subjected to various sorts of harassment,

including annoying phone calls from fellow co-workers, suggestions from a

supervisor that she take leave pursuant to the Family Medical Leave Act, unfair

disciplinary action, along with a requirement that doctor’s notes be provided, a

policy that plaintiff alleges was only put in place only for her. 

IV. ANALYSIS AND CONCLUSIONS

A. Standard of Review

Summary judgment is appropriate when the record reveals that there are no

genuine issues as to any material fact in dispute and the moving party is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(c); Kocak v. Community Health

Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005); Thomas v. City of

Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). The standard for determining

whether summary judgment is appropriate 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.” State Farm Fire & Cas.

Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005), quoting, Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986); see also Tucker v. Union of

Needletrades Indus. & Textile Employees, 407 F.3d 784, 787 (6th Cir. 2005). The

court must consider all pleadings, depositions, affidavits, and admissions on file,

and draw all justifiable inferences in favor of the party opposing the motion. See

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Formerly, “Rule 56(e) require[d] that sworn or certified copies of all 1

papers referred to in an affidavit must be attached to or served with that affidavit

... To be admissible, documents must be authenticated by and attached to an

affidavit that meets the requirements of Rule 56(e) and the affiant must be a

person through whom the exhibits could be admitted into evidence.” Johnson v.

Memphis City Schools, 2010 WL 1957267, *2 (W.D. Tenn. 2010), quoting, 10A

Charles A. Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice &

Procedure, § 2722, at 379-80 & 382-84 (1988). According to the Advisory

Comments to the recent amendments, this specific requirement was omitted

because as unnecessary given the requirement in subdivision (c)(1)(A) that a

statement or dispute of fact be supported by materials in the record. Comments,

2010 Amendments to Fed.R.Civ.P. 56, subdivision (c). Notably, the language

changes have not changed the standard itself. Id. (“The standard for granting

summary judgment remains unchanged.”). 

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

Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005).

Under Federal Rule of Civil Procedure 56, a party asserting a fact that

cannot be or is not genuinely disputed must support that assertion by citing to

particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declaration, stipulations, admission,

interrogatory answers, or other materials; or a showing that the materials cited do

not establish the absence or presence of a genuine dispute or that an adverse party

cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1).1

B. Hostile Work Environment

1. Legal standards

Under the hostile work environment theory, in order to survive summary

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judgment, plaintiff must establish that: (1) she is a member of a protected class

(female [or African-American]), (2) she was subjected to harassment, either

through words or actions, based on sex [or race], (3) the harassment had the effect

of unreasonably interfering with her work performance and creating an objectively

intimidating, hostile or offensive work environment; and (4) there exists some

basis for liability on the part of the employer. Grace v. Uscar, 521 F.3d 655, 678

(6th Cir. 2008), citing Fleenor v. Hewitt Soap Co., 81 F.3d 48, 49 (6th Cir. 1996).

Moreover, “[t]he harassment must meet both an objective and a subjective test, ‘in

other words, the conduct must be so severe or pervasive as to constitute a hostile

or abusive working environment both to a reasonable person and the actual

victim.’” Id., quoting Randolph v. Ohio Dep’t of Youth Svcs., 453 F.3d 724, 733

(6th Cir. 2006). Factors to consider in determining whether a hostile work

environment actually exists include, “the frequency of the discriminatory conduct;

its severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work

performance.’” Id., quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)

(emphasis omitted). In addition, “courts must determine whether the ‘workplace is

permeated with ‘discriminatory intimidation, ridicule and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive work environment.’” Id. at 678-679, quoting Harris, at 21

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 In Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 338 (6th Cir. 2008), the 2

Sixth Circuit observed that Blankenship was modified by the Supreme Court’s

decisions in Faragher v. City of Boca Raton, 524 U.S. 775, 780, 807 (1998) and

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 758-59 (1998), it remained

good law for the proposition that a company may be held liable for coworker

harassment if its “response manifests indifference or unreasonableness in light of

the facts the employer knew or should have known.” Blankenship, 123 F.3d at

873; see also Collette v. Stein-Mart, Inc., 126 Fed.Appx. 678, 684 n. 3 (6th Cir.

2005) (noting that Blankenship’s suggestion that “mere negligence” is insufficient

to establish employer liability was overruled by Ellerth/Faragher and suggesting

that, post-Ellerth/Faragher, “an employer may be held liable when its remedial

response is merely negligent, however well-intentioned”); Fenton v. HiSAN, Inc.,

174 F.3d 827, 829 (6th Cir. 1999) (holding that, post-Ellerth/Faragher, the

standard for coworker harassment is negligence, but applying Blankenship to

define negligence as an employer response that “manifests indifference or

unreasonableness in light of the facts”).

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(internal citations omitted). Failure to establish a prima facie case is grounds to

grant a defendant summary judgment. Street v. J.C. Bradford & Co., 886 F.2d

1472, 1478 (6th Cir. 1989). 

Once a hostile work environment is established, an employee alleging

sexual harassment by a coworker must still establish that the employer is liable

because it knew or should have known of the harassment, yet failed to take prompt

and appropriate corrective action. EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498,

518 (6th Cir. 2001). This Sixth Circuit held in Blankenship v. Parke Care Ctrs.,

Inc., 123 F.3d 868 (6th Cir. 1997), that when coworker harassment is at issue, an 2

employer is liable “if its response manifests indifference or unreasonableness in

light of the facts the employer knew or should have known.” Id. at 872-73. 

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2. Parties’ arguments

According to defendant, the vast majority of conduct complained of by

plaintiff, even if it could be considered “harassment,” was not “discriminatory

harassment,” and therefore does not warrant consideration for purposes of

analyzing her hostile work environment claim. Specifically, plaintiff complained

of “being called a ‘trick,’ being called ‘cheap,’ being constantly whistled at, being

exposed to comments about [her] ‘titties,’ and being exposed to comments

insulting her intelligence as it related to her race.” According to defendant,

plaintiff cannot demonstrate that being called “cheap” or being whistled at had

anything to do with her gender, those allegations cannot be considered in the

hostile workplace analysis. Based on plaintiff’s own “Formal Complaint,” the

complained of conduct was engaged in by both women and men. Further,

defendant argues that plaintiff’s claim that she was “exposed to comments

insulting [her] intelligence as it relates to [her] race” is entirely based on her own

subjective belief. This allegation relates to a comment concerning the educational

children’s reading program, “Hooked on Phonics” (Ex. 11, Report of

Investigation). Defendant asserts, however, that plaintiff cannot offer any

evidence, just her subjective belief that this allegation somehow related to her

race. During her deposition, defendant says that plaintiff did not provide any

examples of comments that purportedly insulted her intelligence based on her race.

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Defendant maintains that plaintiff’s “bare subjective belief that certain nebulous

comments were racially insulting simply does not give rise to a hostile work

environment claim.” 

Defendant acknowledges that certain conduct could possibly fall within the

ambit of “discriminatory harassment” such as plaintiff’s claims that she was called

a “trick,” and that she was exposed to comments about her “titties.” Defendant

argues, however, that plaintiff cannot produce any evidence that these alleged

comments were anything more than “discrete occurrences.” Likewise, even if the

court were to consider plaintiff’s allegation that she was subjected to comments

insulting her intelligence on the basis of her race (apparently one ambiguous

comment made by a co-worker regarding the educational program “Hooked on

Phonics”), plaintiff offers no evidence that this comment was anything more than

an isolated occurrence. According to the Sixth Circuit, “the occasional comments,

which may have been ‘offensive utterances,’ do not rise to the level required by

the Supreme Court’s definition of a hostile work environment in Harris (i.e.,

‘physically threatening or humiliating’).” Grace, 521 F.3d at 679, quoting Harris,

510 U.S. at 23.

Defendant also argues that even if plaintiff has made out a prima facie case,

it took prompt, remedial action, which insulates it from liability. According to

defendant, plaintiff admits that defendant’s prompt and appropriate remedial

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action successfully abated any alleged “harassment.” According to her deposition

testimony, following the investigation the harassment that she was allegedly being

subjected to by her coworkers stopped. See Davis v. Monsanto Chem. Co., 858

F.2d 345, 349-350 (6th Cir. 1988) (concluding that summary judgment was

appropriately granted in favor of the defendant/employer where no further

harassment occurred following notice to employer and employer’s prompt

remedial action). Thus, defendant argues, even if the Court were to conclude that

the alleged behavior of plaintiff’s co-workers amounted to hostile work

environment based on either her race or her sex, defendant is immune from

liability because it took prompt and appropriate remedial action which

plaintiff admits stopped the alleged harassment.

According to plaintiff, she was subjected to repeated and unwelcomed

sexual harassment including; being called a “trick” (slang for a prostitute); having

various and repeated comments made about her breasts; having men look down

her shirt; being targeted for the way plaintiff moved her hips while walking; and

being whistled at. (See e.g., Exhibit C: Complaint Interview Form). Plaintiff also

claims that in 2007, after a quarterly office meeting, one of her coworkers

followed plaintiff out to her car and attempted to force her to perform oral sex on

him. (Exhibit A: Crawford at 99).

In addition, plaintiff claims that she has been prejudiced from a complete

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 In response, defendant asserts that plaintiff’s claim that she is entitled to 3

adverse inference is “ridiculous.” (Dkt. 37, Pg ID 650). According to defendant,

plaintiff did not identify the “stuff” she alleges was taken or destroyed, she never

complained about any theft, and the first time this was ever mentioned was at her

deposition. Defendant also indicates that the alleged theft was never mentioned in

plaintiff’s EEOC complaint. (Dkt. 37, Pg ID 651). 

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presentation of her claim because defendant intentionally destroyed plaintiff’s

documentary evidence chronicling the exact scope of defendant’s harassment.

(Exhibit A: Crawford at 107). Thus, plaintiff claims that defendant’s bad faith

destruction of evidence exposes defendant to an adverse inference instruction at

trial. On August 12, 2008 in plaintiff’s Formal Complaint, she stated that, “I am in

contact with an attorney to look into safeguarding my workplace rights through

litigation.” (Exhibit J). According to plaintiff, defendant emptying her desk and

destroying her personal effects the next day is clear retaliation and is also bad faith

destruction of evidence.3

Plaintiff urges the court to reject defendant’s argument that the harassing

comments were not discrimination because the conduct was engaged in by both

men and women because it is untrue. In her formal complaint, plaintiff does not

complain that the men and woman harass her. (Exhibit J). Instead, she clearly

claimed that the men harassed her and she was upset that, “the men and women

fail to see the effects and consequences this behavior has on certain co-workers...”

Id. As to the particular discrete acts, plaintiff identifies Nate Johansen and Dave

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Perlin (though primarily Johansen) as the individuals that made the harassing

comments. (Exhibit C).

Plaintiff also claims that defendant failed to take prompt remedial action. In

the present case, defendant readily acknowledges that, “It was also noted from the

investigation that sexual harassment was alleged by an internal employee and that

behavior occurred in the office that would not be consistent with the internal

employee conduct policy of the company.” (Exhibit F). According to plaintiff,

defendant completely ignored the February 2007 sexual assault perpetrated against

plaintiff by a fellow employee. (Exhibit E: Investigative Report). Plaintiff also

claims that the disciplinary actions were inadequate. Rather than disciplining the

employees that engaged in the subject conduct, defendant issued an office wide

memorandum that included a number of employees that were not involved in any

conduct violating of company policy. (Exhibit G: Haight at 49-50). And,

defendant’s only remedial act of moving plaintiff to another office, is undercut by

events following the transfer. According to plaintiff, defendant’s so-called prompt

remedial action was just the first step in effectuating a retaliatory discharge.

Following the conclusion of defendant’s investigation, Philbrick immediately went

on the offensive against plaintiff. In quick succession, plaintiff, who had no prior

disciplinary history, received four (4) major disciplinary actions for “absenteeism”

and “tardiness.” In addition, plaintiff was also made the subject of new attendance

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policies that applied only to her. For example, plaintiff was required to bring in

doctors notes to prove that her absences were medically related. (Crawford at

131). According to plaintiff, Philbrick admits that this was not company policy,

rather a special policy that she instituted especially for Plaintiff. (Philbrick at

67-68). Plaintiff also alleges that, Philbrick admitted that this policy was

“unethical.” Id. at 86-87. Plaintiff urges the Court to examine with great scrutiny

the treatment that plaintiff received during two of the subject disciplines. When

giving plaintiff the September 29, 2008 progressive game plan, Philbrick told

plaintiff that she should hand in her resignation. (Philbrick at 78-79). On

November 28, 2008, Philbrick again disciplined plaintiff for alleged absenteeism,

threatened to terminate her and attempted to force her onto FMLA. (Crawford at

139; Philbrick at 11). According to plaintiff, these retaliatory events are a

continuation of the sexual harassment faced by plaintiff and demonstrate that

Defendant did not take prompt remedial action. Instead, defendant took a

measured approach calculated at “building a case” against plaintiff and then

terminating her for complaining about the sexual harassment.

Aerotek urges the Court to reject plaintiff’s attempt to make an issue out of

the fact that the Investigative Report does not contain any reference to her

allegations of a purported “sexual assault,” which allegedly occurred more than a

year prior to Crawford’s formal complaint and Aerotek’s investigation. According

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to Aerotek, the report does not reference the alleged sexual assault because

Crawford admittedly never reported it, either at the time of the alleged incident

(Ex. 1, 100:14-21; 102:20-21; 101:16-102:11) or in her formal complaint (Ex. 6). 

Aerotek also points out that Crawford failed to even make a passing reference to

the alleged sexual assault in her Formal Complaint (Ex. 6), nor is there any

reference to the alleged sexual assault in the Complainant Interview Form. (Ex.

11, pp. 10-13). Aerotek also asserts that it is now convenient that Crawford claims

that she made Higley aware of the alleged sexual assault during a telephone call,

however, when Higley e-mailed Crawford to follow-up concerning her formal

complaint, she declined to provide any information concerning it or any other

alleged conduct, or otherwise modify her formal complaint. (Exs. 9-10). 

Moreover, when Crawford subsequently filed a charge of discrimination with the

EEOC on September 24, 2008, she did not mention the alleged sexual assault (Ex.

7), nor did Crawford mention the alleged sexual assault when she subsequently

amended her Charge on February 3, 2009. (Ex. 8). In fact, it is not until Crawford

filed her lawsuit on July 24, 2009 that she first vaguely referenced the alleged

sexual assault. (Dkt. 1, p. 3). Thus, according to Aerotek, there is no evidence

corroborating Crawford’s claim that she advised Aerotek of the alleged assault. 

3. Analysis

In the view of the undersigned, Aerotek took prompt, remedial action in

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response to plaintiff’s complaints. As soon as Crawford reported the allegations to

Higley, she was placed on paid administrative leave, Higley responded to her

complaint within hours, and he personally flew to Michigan to interview

employees at the Warren office, as well as plaintiff. Plaintiff primarily relies on

West v. Tyson, 374 Fed.Appx. 624 (6th Cir. 2010) to show that defendant did not

take prompt remedial action. The facts in West involved allegations of an entirely

different nature (plaintiff feared for her personal safety as alleged incidents of

whistling, sexual comments, and physical touching occurred 10-15 times per

shift). The only response by West’s supervisor after reporting the incident was to

transfer her to a different line and “watch her.” Nothing was reported to upper

level management. Id. Plaintiff’s reliance on West is misguided and is not

applicable to this case because defendant immediately took steps to immediately

remove plaintiff from the hostile environment she identified, the company acted

promptly to investigate the claims and ensure that the alleged harassment ceased. 

Plaintiff even admits that there was no further sexual or racial harassment after the

investigation and transfer. Under these circumstances, defendant’s prompt,

remedial action bars plaintiff’s hostile work environment claim.

In addition, plaintiff claims that the investigation did not address the

claimed sexual assault and therefore, does not constitute “prompt, remedial”

action. Plaintiff is correct that the investigation report did not specifically address

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the alleged sexual assault. Defendant asserts that plaintiff failed to promptly

report the incident (it was reported to Higley over a year after it occurred) and that

she failed to provide the name of the perpetrator or any details regarding the

incident. In the view of the undersigned, this seeming factual “dispute” regarding

whether and to what extent the incident was reported during the investigation is

immaterial. Rather, the problem with plaintiff’s claim is that she identifies

nothing that defendant failed to do to “remedy” the situation, once it was reported. 

The accused employee no longer worked for defendant at the time it was allegedly

reported and plaintiff complained of no other such incidents or any conduct even

coming close to a physical sexual assault. Under these circumstances, plaintiff has

not identified any material defect in the prompt, remedial action taken by

defendant and thus, the sexual assault allegation does not cause plaintiff’s hostile

work environment claim to survive. And, given the lack of specificity or detail

regarding her purported “spoliation” claim, the undersigned is not persuaded that

this allegation saves her claim.

Finally, plaintiff says that she is not making a traditional failure to

train/failure to promote claim. Rather, according to plaintiff’s response to the

motion for summary judgment, the allegations regarding her lack of training and

lack of promotion should be considered in the context of her hostile work

environment claim. However, it is not clear on this record that defendant ever

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received notice of a hostile work environment claim based on these allegations. 

There is nothing in plaintiff’s written formal complaint regarding training. 

Notably, there is nothing in the follow up emails between Higley and plaintiff on

this issue and there was nothing mentioned in the investigation report. Unlike the

sexual assault claim, plaintiff does not maintain that she reported this conduct to

defendant during the investigation. Plaintiff points to no evidence that defendant

knew or should have known about this particular harassment issue and failed to

address it. In the absence of some other evidence to show actual or constructive

notice, the undersigned is not persuaded that plaintiff’s testimony that she raised

the issue of lack of training with Brozkowski and Philbrick at various points in

time (unconnected to her formal complaint) is sufficient to put defendant on notice

of plaintiff’s claim that her complaints about a lack of training and promotion

were part of a hostile work environment based on her race and sex. 

D. Retaliation

1. Legal standards

 “The plaintiff must make out a prima facie case of retaliation by

establishing four elements: (1) the plaintiff engaged in an activity protected by

Title VII; (2) the defendant knew that the plaintiff exercised his or her rights; (3)

the defendant took an employment action against the plaintiff that a reasonable

employee would have found materially adverse; and (4) there was a causal

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connection between the protected activity and the adverse employment action.”

Watson v. City of Cleveland, 202 Fed.Appx. 844, 855 (6th Cir. 2006). In the

absence of direct evidence, proof of a Title VII retaliation claim is controlled by

McDonnell Douglas, just as with a discrimination claim. In this case, plaintiff has

not offered any direct evidence of retaliation. Thus, plaintiff’s retaliation claim

must be analyzed under the McDonnell-Douglas burden-shifting framework,

which provides that if the plaintiff establishes a prima facie case, then the burden

shifts to the defendant to “articulate some legitimate nondiscriminatory reason” for

its action. McDonnell Douglas, 411 U.S. at 802. Because the ultimate burden of

persuasion rests with the plaintiff, once the defendant comes forward with

legitimate nondiscriminatory reasons for its actions, the plaintiff has to

demonstrate by a preponderance of the evidence that the employer’s reasons were

pretextual. Wrenn v. Gould, 808 F.2d 493, 501 (6th Cir. 1987). The plaintiff has

the ultimate burden of persuasion even though a prima facie case, once

established, shifts the burden of producing evidence to the defense. Id. 

To establish pretext, a plaintiff must show “‘either (1) that the proffered

reasons had no basis in fact, (2) that the proffered reasons did not actually

motivate [his] discharge, or (3) that they were insufficient to motivate discharge.’”

Russell v. University of Toledo, 537 F.3d 596, 604 (6th Cir. 2008), quoting

Manzer v. Diamond Shamrock Chems. Co., 29 F. 3d 1078, 1084 (6th Cir. 1994),

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overruled on other grounds, Geiger v. Tower Automotive, 579 F.3d 614 (6th Cir.

2009). “For an employer to avoid a finding that its claimed nondiscriminatory

reason was pretextual, the employer must be able to establish its reasonable

reliance on the particularized facts that were before it at the time the decision was

made.” Escher v. BWXT Y-12, LLC, 627 F.3d 1020, 1030 (6th Cir. 2010) (internal

citations omitted). However, “[t]he investigation process does not need to be

perfect, but the employer must make a reasonably informed and considered

decision before taking an adverse employment action.” Id. (internal citations and

quotation marks omitted).

In order to determine whether the plaintiff has raised a genuine issue of

material fact as to pretext, the Court must consider not whether defendant’s

reasons for taking an adverse action against the plaintiff were actually good

reasons, but instead whether the defendant had an honestly held belief that they

were. See Alan v. Highlands Hosp. Corp., 545 F.3d 387, 398 (6th Cir. 2008).

[T]he key inquiry in assessing whether an employer

holds such an honest belief is whether the employer

made a reasonably informed and considered decision

before taking the complained-of action. An employer has

an honest belief in its rationale when it reasonably relied

on the particularized facts that were before it at the time

the decision was made. [W]e do not require that the

decisional process used by the employer be optimal or

that it left no stone unturned.

Id., quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th

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Cir. 2007). “The ‘plaintiff must produce sufficient evidence from which the jury

could reasonably reject [the defendants’] explanation and infer that the defendants

. . . did not honestly believe in the proffered nondiscriminatory reason for its

adverse employment action.’” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516,

526 (6th Cir. 2008), quoting Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th

Cir. 2001).

2. Parties’ arguments

Defendant’s position regarding whether the disciplinary actions taken

against plaintiff after she filed her complaint constituted “adverse employment

action” is not entirely clear, but it does not seem to dispute this issue, or the first

two prongs of the test (that plaintiff engaged in protected activity under Title VII

and that this exercise of rights was known to defendant). Defendant argues,

however, that plaintiff has not shown that any of the discipline is causally

connected to the protected activity. Defendant seemingly argues that because

plaintiff was, in fact excessively tardy and left work early, the discipline was

appropriate and therefore, unconnected to her EEOC complaint. Defendant also

points out that while plaintiff claims that she was subject to retaliatory harassing

phone calls from her former co-workers after she went back to the Warren office,

she acknowledges that no racial or sexual comments were made during these

phone calls. Defendant asserts that even if plaintiff can establish a prima facie

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case of retaliation, it too must fail because defendant had a legitimate business

reason for all the actions it took (plaintiff’s absenteeism and tardiness and the

closure of the Warren office).

According to plaintiff, defendant began to immediately retaliate against

plaintiff following the conclusion of the investigation and the allegations of excess

absenteeism are completely unfounded. According to plaintiff, Philbrick admits

that every single day that plaintiff was absent from work was covered by personal

accrued leave time that was properly approved under Defendant’s company policy. 

Philbrick at 73. In fact, at the time of her termination, plaintiff had over 25 

remaining hours of personal accrued leave time. Id. Plaintiff also argues that

tardiness was commonplace. See Johansen at 83. According to plaintiff,

Philbrick admitted that plaintiff was tardy before filing the complaint, but

Philbrick only recorded one of the tardies and not the others. Philbrick at 59. In

summary, plaintiff argues that the timing of these events in relationship to

plaintiff’s complaint is highly suggestive of retaliation and creates a genuine issue

of material fact for the jury. While plaintiff asserts that the reasons for her

termination are “pretextual,” she offers no analysis or explanation of this

argument. (Dkt. 35, Pg ID 466-467).

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3. Analysis

Assuming that defendant’s conduct was “materially adverse,” the

undersigned finds that defendant has established legitimate business reasons for its

conduct. First, as to plaintiff’s discipline, there does not appear to be any dispute

that plaintiff was, in fact tardy. Rather, plaintiff argues that other employees were

likewise tardy, but not disciplined. As to plaintiff’s termination, there is no

question that the Warren office was closed and that both administrative employees

at that located were terminated (plaintiff and a white female co-worker). No

evidence has been presented that the facts underlying her disciplinary action or

ultimate separation from the company were false. Further, no evidence has been

presented by plaintiff that would indicate that her excessive tardiness and

insubordination did not motivate the defendant to discipline plaintiff, or that such

a reason was insufficient to warrant such discipline. And, ample evidence exists

to indicate that the entire Warren office was shut down for economic reasons, and

that plaintiff would have lost her job at Aerotek with or without any disciplinary

record. Plaintiff was not terminated for disciplinary reasons and she offers no

evidence that the closure of the Warren office was pretextual. Indeed, both

administrative employees located at that office were terminated as part of the

closure plan, which undercuts any theory of pretext plaintiff might offer.

Lastly, plaintiff can sustain a retaliation claim if she can show that after

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filing a complaint alleging violations of Title VII, she suffered severe or pervasive

harassment as a result of her filing the complaint. See Morris v. Oldham County

Fiscal Court, F.3d 784 (6th Cir. 2000). Plaintiff alleges that a number of former

fellow co-workers made annoying phone calls after she transferred back to the

Warren office. Plaintiff stated that the calls were unnecessary, but made no

mention of the frequency of the phone calls or of the unprofessional behavior was

alleged. Plaintiff alleged that phone calls were made simply because “they

could....In my opinion.” (Dkt. 33-2, p. 33). This simply does not satisfy even the

relatively low standard of “materially adverse” employment action that would

have “dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Moore v. Third Judicial Circuit of Michigan, — F.Supp.2d —;

2011 WL 4527781 (E.D. Mich. 2011), quoting Burlington Northern and Santa Fe

Railway Co. v. White, 548 U.S. 53, 68 (2006).

IV. RECOMMENDATION

For the reasons above, the undersigned RECOMMENDS that defendant’s

motion for summary judgment be GRANTED, and that the plaintiff’s complaint

be DISMISSED with prejudice.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

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72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: February 17, 2012 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I certify that on February 17, 2012, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Nabih H. Ayad, Gary C. Ankers, and William B.

Balke.

s/Darlene Chubb 

Judicial Assistant

(810) 341-7850

darlene_chubb@mied.uscourts.gov

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