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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANN L. BAILEY and 

LINDA MAY,

Plaintiffs, Civil Action No. 09-13757

HON. BERNARD A. FRIEDMAN

vs.

YOUR SOURCE MANAGEMENT

GROUP, INC., et al.,

Defendants.

____________________________________/

OPINION AND ORDER

I. Introduction

This matter is before the Court on Defendant, YourSource Management Group, Inc.’s

Motion for Summary Judgment. Plaintiffs, Ann L. Bailey and Linda May, filed a response, and

Defendant filed a reply. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion

without oral argument.

This case contains claims of discrimination and retaliation. Plaintiffs have settled their

claims with all defendants except YourSource Management Group, Inc. Defendant contends that

it never employed Plaintiffs. Defendant further argues that even if it were Plaintiffs’ employer, it

can not be held liable under Plaintiffs’ theories of liability, because it did not exercise the

requisite amount of control over Plaintiffs to warrant the imposition of liability.

II. Facts

Defendant BDB Properties, LLC (“BDB”) is a residential apartment properties company

with multiple property locations. Plaintiff Linda May began working at BDB as a leasing agent

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in 1998, and was eventually promoted to BDB’s VP of operations. Plaintiff Ann Bailey began

working for BDB as a leasing agent in 2003. 

Defendant YourSource, Inc. is a professional employer organization (“PEO”) that

contracts with businesses to administer payroll, benefits, unemployment, workers’ compensation,

and various other human resources functions.

HR Direct, LLC, a co-defendant, is also a PEO, and contracts with businesses to perform

similar functions. In 2007, HR Direct contracted with BDB to perform certain services under a

co-employment agreement. Dft. Exh. 1, Co-Employment Agreement. Plaintiffs state that HR

Direct is one of Defendant’s companies, and that HR Direct was assigned to BDB by Defendant. 

Defendant states that even if HR Direct had a co-employment agreement with BDB, such

agreement did not include Defendant, and Defendant not co-employ Plaintiffs. However,

Plaintiffs contend that Defendant fulfilled all of the duties of the HR Direct/BDB contract,

including, but not limited to, BDB employees completing YourSource applications, BDB

employees completing YourSource forms, BDB employees being given YourSource employees’

contact information should they have any questions, YourSource was listed as employer of

BDB’s employees to the unemployment insurance agency, and “YourSource” appearing on the

cover of the BDB handbook. Pltf. Exh. 1, 4, 5, 6. Diane Oberlitner, a human resource manager,

was assigned by Todd Lancaster, the YourSource President, to be the BDB human resource

manager for BDB employees. Dft. Exh. 1. In addition, when BDB terminated its contract with

YourSource, its CFO sent a notice to all BDB employees regarding their employment status

referencing them as “All employees of BDB Properties/HR Direct, LLC/YourSource

Management Group.” Dft. Exh. 21. 

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Brian Di Bartolomeo was the President and Managing member of BDB. Plaintiffs state

that on October 25, 2007, May met with Oberlitner and complained to Oberlitner that

Bartolomeo’s actions and behavior was affecting employees in the workplace. Specifically, May

told Oberlitner that Bartolomeo was flirtatious with young female staff members, and that other

employees had complained to May repeatedly about how female employees were being sexually

harassed by Bartolomeo. Complaints of this behavior by BDB employees continued into 2008. 

On June 3 and 4, 2008, May went to a BDB worksite in Troy to discuss these complaints with

Bartolomeo. May states that she told him that the workplace was suffering because of his

actions and sexual advances toward employees, and that BDB employees felt that their

workplace was continuously being disrupted by his sexual actions and promotions of younger

employees who were not qualified for their positions, in exchange for return of his sexual

flirtation. 

On June 4, 2008, Bartolomeo contacted Oberlitner to implement his decision to eliminate

the BDB position of VP of Operations. His decision was discussed with Oberlitner and

Lancaster. May was terminated on June 6, 2008, and was told that the termination was because

of “elimination of job.” On August 19, 2008, May filed a Charge of Discrimination with the

EEOC alleging age and sex discrimination.

On August 6, 2008, Defendant Bailey filed a Charge of Discrimination with the EEOC

against BDB alleging age discrimination and retaliation discrimination. On August 11, 2008,

Bailey was called into the office by her manager and questioned about the EEOC filing. She

contends that she was then told that she was being suspended for the EEOC filing, her keys that

she used at the property she worked at were taken from her, and she was sent home without

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notice of when she would return. When Bailey returned to work, her keys were not returned to

her. She states that her keys were returned to her in December 2008, after she signed a form that

other BDB employees did not have to sign in order to be allowed keys to BDB properties. She

also contends that she received multiple write-ups for alleged minor offenses after filing her

charges of discrimination with the EEOC, and on August 21, 2008, Oberlitner gave her a

warning for telling a co-workers that he filed her Charge of Discrimination with the EEOC when

her keys were not returned to her. She received additional warning notices in October 2008 and

February 2009. 

III. Summary Judgment Standard

Summary judgment is proper where there is no genuine issue of material fact, and the

moving party is entitled to judgment as a matter of law. In considering a motion for summary

judgment, the Court will construe all facts in a light most favorable to the non-moving party. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). There are no genuine

issues of material fact when “the record taken as a whole could not lead a rational trier of fact to

find for the nonmoving party.” Id. If the movant carries its burden of showing an absence of

evidence to support a claim, then the nonmovant must demonstrate by affidavits, depositions,

answers to interrogatories, and admissions that a genuine issue of material fact exists. Celotex

Corp. v. Catrett, 477 U.S. 317, 324-325 (1986). 

IV. Analysis

A. Employment Relationship

Defendant argues that YourSource was not Plaintiffs’ employer, stating that because the

Elliott Larsen Civil Rights Act (“ELCRA”) and Title VII prohibit discrimination against

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“employees,” it is fundamental that plaintiffs’ claims first demonstrate an employer relationship

with YourSource. Defendant states that BDB entered into its PEO “co-employment”

relationship with HR direct, and that a similar contract did not exist and is not alleged between

YourSource and BDB.

Further, Defendant argues, even if YourSource was a technical employer, Plaintiffs’

attempt to hold YourSource liable under Title VII and the ELCRA under a joint-employer theory

is unsuccessful. 

In response, Plaintiffs argue that YourSource, through HR Direct which is one of its

many companies, contracted with BDB to become the joint employer of Plaintiffs. They state

that after BDB executed the contract with HR Direct, HR Direct was never again referenced as

BDB’s PEO, and YourSource fulfilled all of the obligations of the contract, acting in place of

HR Direct as the PEO for BDB. They note that YourSource employee Oberlitner was assigned

by YourSource’s president to the BDB account, that documents distributed to BDB employees

contained the “YourSource” name and contact info, and that Oberlitner’s business card had only

the name YourSource. Further, YourSource was listed as the employer of all BDB employees to

the unemployment insurance agency. 

Further, Plaintiffs claim that the contract between BDB and HR Direct, which Defendant

actually fulfilled, establishes that HR Direct would retain control of the BDB employees

sufficient to establish a joint employer relationship under Title VII. The contract clearly stated

that “HR Direct retains the right to hire, fire, reassign, discipline, compensate, direct, control and

otherwise manage Employees. . .” Pltf. Exh. 3. 

When determining whether a joint employer relationship exists, “courts consider whether

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one defendant has control over another company’s employees sufficient to show that the two

companies are acting as ‘joint employer’ of those employees.” Swallows v. Barnes & Noble

Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997). Factors to consider to determine whether

Defendant may be deemed an employer under the joint employer doctrine include whether

Defendant “exercised sufficient control over employees to constitute a joint employer, [which] is

a factual determination requiring the Court to consider such factors as authority to hire, fire and

discipline employees, promulgation of work rules and conditions of employment, issuance of

work assignments and instructions, and supervision of employees' day-to-day activities.” EEOC

v. Regency Windsor Mgmt. Co., 862 F.Supp. 189, 191 (W.D.Mich. 1994). 

Here, regardless of whatever sort of contractual relationship existed between BDB and

HR Direct, there are significant allegations and enough documentary exhibits to create a question

of fact regarding whether YourSource operated as a joint employer of Plaintiffs. The PEO

employees were YourSource employees, and YourSource documents were used through the

human resources process from hiring through firing, and in creating the employee handbook. 

Accordingly, the Court finds that there is a question of fact regarding whether YourSource is

considered a joint employer of Plaintiffs. 

B. Retaliation

Defendant next argues that it is entitled to summary judgment on Plaintiffs’ claim of

retaliation, because there is not any evidence that either Plaintiff suffered an adverse

employment action as a result of engaging in protected activity. 

The ELCRA and Title VII prohibit employers from retaliating against an employee for

exercising her rights under Title VII and the ELCRA. To establish a retaliation claim, a plaintiff

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must show 1) she engaged in a statutorily protected activity; 2) defendant knew she engaged in

the activity; 3) she suffered an adverse employment action or was subjected to retaliation by a

supervisor; and 4) the adverse action or harassment was causally related to the protected activity. 

Under this Circuit’s burden shifting framework, Plaintiffs bear the initial burden of

establishing a prima facie case of retaliation. “The burden of establishing a prima facie case in a

retaliation action is not onerous, but one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559,

563 (6th Cir.2000). “Once a prima facie case is established, the burden of producing some

non-discriminatory reason falls upon the defendant.” Williams v. Nashville Network, 132 F.3d

1123, 1131 (6th Cir.1997). “If the defendant demonstrates such, the plaintiff then assumes the

burden of showing that the reasons given by the defendant were a pretext for retaliation.” Id.

May claims that she was retaliated against because she confronted Bartolomeo regarding

rumors and innuendo about his relationship with a female property manager. She states that as

Vice President of Operations, she had received complaints from other employees about how

Bartolomeo’s actions at the company was affecting their ability to perform these jobs. She

further states that upon hearing these complaints, and witnessing Bartolomeo making a sexual

advance toward an employee on June 3, 2008, she felt that she had a responsibility as Vice

President of Operations to discuss his actions with him. She states that she met with Bartolomeo

on June 4, 2008, and on June 6 2008, she and her daughter were terminated. 

As a preliminary matter, Plaintiffs have failed to demonstrate that Bartolomeo’s actions

constitute either sexual harassment or hostile work environment. While they allege that they

witnessed some flirtatious behavior that may have been inappropriate, neither allege that they

themselves were subjected to it, and the details of such behavior are insufficient to warrant a

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finding of either sexual harassment or hostile work environment sufficient to maintain a Title VII

or ELCRA claim. The Supreme Court has explained that not every sexually hostile work

environment is actionable under Title VII. To fall within the purview of Title VII, the workplace

must be “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

working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

However, even if Plaintiffs can not establish that the underlying activities constitute

either sexual harassment or hostile work environment, they may still pursue their retaliation

claims. It is unlawful to retaliate against an individual for engaging in a protected activity. 

Barnett v. Dept. of Veterans Affairs, 153 F.3d 338 (6th Cir. 1998). To establish engagement in a

protected activity, it is not essential that the plaintiff show that the underlying claim of

discrimination was meritorious. Peters v. Jenney, 327 F.3d 307, 320-321 (4th. Cir. 2003). “The

inquiry is therefore (1) whether Plaintiffs “subjectively (that is, in good faith) believed” that

Defendant had engaged in violative behavior, and (2) whether this belief ‘was objectively

reasonable in light of the facts,’ a standard which we will refer to as one of ‘reasonable belief.’”

Id. quoting Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1312 (11th Cir.2002). Here, it is

objectively reasonable that both May and Bailey believed that Bartolomeo was engaging in

sexually harassing behavior. They had received complaints about his behavior, and had

observed such behavior themselves. Accordingly, their decision to address such behavior

through both confrontation and the EEOC complaint was objectively reasonable. 

Therefore, the question before the Court is whether May’s confrontation of Bartolomeo

and Bailey’s EEOC complaint were protected activities and, if so, whether they were retaliated

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against for engaging in such activities. 

1. May

While May does not claim that she personally was subjected to Bartolomeo’s sexual

advances, “[i]ndividuals are also protected under Title VII from discrimination because of their

advocacy on behalf of protected class members.” Barrett v. Whirlpool Corp., 556 F.3d 502, 513

(6th Cir. 2009). “Title VII and the ELCRA protect employees from retaliation for having

opposed an employer's unlawful actions. 42 U.S.C. § 2000e-3(a). . . An employee has engaged in

opposing activity when she complains about unlawful practices to a manager, the union, or other

employees.” Id. at 516.

Here, May alleges that she opposed Bartolomeo’s sexual advances toward her coworkers. She further alleges that she complained about Bartolomeo’s behavior directly to him,

as well as to other employees. Two days later, she was terminated. In Mickey v. Zeidler Tool

and Die Co., 516 F.3d 516, 526 (6th Cir. 2008), the Sixth Circuit held that when an employer

immediately retaliates against an employee upon learning of protected activity, temporal

proximity is enough to demonstrate retaliation. 

May has demonstrated a prima facie case of retaliation. Defendant has not provided a

non-discriminatory reason for May’s termination, other than to submit the unsupported assertion

that her job was “eliminated.” May’s claim for retaliation may proceed.

2. Bailey

Bailey claims that she was retaliated against because of her association with her sister

and because of the charges that she filed with the EEOC. The alleged retaliation consisted of a

brief suspension with pay, and the temporary taking away of her keys. However, she was not

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demoted or laid off, and her wages were not reduced. The Supreme Court has explained that

“The antiretaliation provision protects an individual not from all retaliation, but from retaliation

that produces an injury or harm. As we have explained, the Courts of Appeals have used

differing language to describe the level of seriousness to which this harm must rise before it

becomes actionable retaliation . . . In our view, a plaintiff must show that a reasonable employee

would have found the challenged action materially adverse, ‘which in this context means it well

might have ‘dissuaded a reasonable worker from making or supporting a charge of

discrimination.’” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68

(2006). Here, the Court finds that the actions Bailey complains of do not amount to an adverse

employment action or retaliation by a supervisor. The Court does not believe that the actions

complained of are such that would have “dissuaded a reasonable worker from making or

supporting a charge of discrimination.” 

In addition, Bailey claims that she suffered retaliatory harassment following her EEOC

charge. She alleges that in addition to the actions taken against her described above, including

her brief suspension and the removal of her keys, she received three “employee warning

notices,” and was not given her work schedule in advance, as other employees were. Under

Morris v. Oldham County Fiscal Court, 201 F.3d 784 (6th Cir. 2000), retaliatory harassment by a

supervisor can be actionable in a Title VII case. However, even in a retaliatory harassment

matter, the alleged actions must be “severe and pervasive.” For example, the Sixth Circuit in

Morris found that allegations that a supervisor “(1) visited the [place of employment]

unaccompanied a total of fifteen times, and called [Plaintiff] on the telephone over thirty times . .

. solely for the purpose of harassing [Plaintiff]; (2) drove to the [place of employment] on

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several occasions, and simply sat in his truck outside the Department building, looking in

[Plaintiff’s] window and making faces at her; (3) followed [Plaintiff] home from work one day,

pulled his vehicle up beside her mailbox, and gave her “the finger”; (4) destroyed the television

[Plaintiff] occasionally watched at the [place of employment]; and (5) threw roofing nails onto

her home driveway on several occasions [is] behavior [that] clearly constitutes more than simple

teasing, offhand comments, and isolated incidents.” Id. at 793. 

Here, Plaintiff’s claims do not rise to a level of “severe and pervasive” harassment. 

Plaintiff Bailey’s retaliation claims must be dismissed.

C. Age Discrimination

Defendant’s motion argues that it is entitled to summary judgment on Plaintiffs’ claims

of age discrimination where there is no evidence that they suffered an adverse employment

action because of their age. Plaintiffs did not respond to this argument in their response brief. 

Plaintiffs have not offered any evidence that their age was considered in any decisions affecting

their employment. Summary judgment on Plaintiffs’ age discrimination count is granted. 

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V. Order

Accordingly,

IT IS ORDERED that Defendant’s Motion for Summary Judgment is GRANTED IN

PART and DENIED IN PART.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment on Counts

I and II is GRANTED as to Plaintiff Bailey, and is DENIED as to Plaintiff May.

IT IS FURTHER ORDERED Defendant’s Motion for Summary Judgment on Counts III,

IV and V is GRANTED. 

S/Bernard A. Friedman 

Bernard A. Friedman

Senior United States District Judge

Dated: February 14, 2011

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

February 14, 2011, by electronic and/or ordinary mail.

S/Felicia Moses for Carol Mullins 

Case Manager

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