The opinion of the court was delivered by: Hon. Ellen S. Carmody
This matter is before the court on Defendants' Motion for Summary Judgment. (Dkt. #24). For the reasons discussed below Defendants' motion is denied.
Defendant Challenge Manufacturing Company ("Challenge") employed Plaintiff as a machine operator in February of 2007. Plaintiff claims to have been sexually assaulted on February 9, 2010, by Kelvin Javier Campos-Cuardrado, a Challenge employee. Plaintiff alleges that Mr. Campos-Cuardrado was acting in a supervisory role that day. Challenge refutes that Mr. CamposCuardrado was acting in a supervisory role at the time of the alleged assault, however, Challenge later admitted in its Answer that Mr. Campos-Cuardrado was acting in a supervisory capacity.
Plaintiff did not report the sexual assault to Challenge. Plaintiff later reported the alleged sexual assault to the Walker Police Department ("WPD"). WPD conducted an initial investigation into the incident, including speaking with management at Challenge and questioning Mr. Camps-Cuadrado. On Monday, February, 12, 2007, and Tuesday, February 13, 2007, Plaintiff called into work "sick," reportedly at the direction of WPD. For the duration of the week Plaintiff failed to report to work and failed to report her absences.
Plaintiff was subsequently terminated from her employment. Challenge maintains she was terminated because she violated the "no-call, no-show" policy*fn1. Plaintiff asserts that she was terminated because she filed a report with the WPD regarding the alleged sexual assault.
Plaintiff filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC"). The EEOC concluded that there existed reasonable cause to believe a violation had occurred. Challenge declined to enter into settlement discussions with Plaintiff. Subsequently, Plaintiff filed this case.
Plaintiff initiated this action under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended; 42 U.S.C.A. §2000e to 2000e-17; and the Elliot Larsen Civil Rights Act ("ELCRA"), as amended. Plaintiff did not specify which claims would be pursued under Title VII, 42 U.S.C.A §2000e to 2000e-17, nor the ELCRA*fn2.
Plaintiff's brief in response to Defendants' motion for summary judgment raises three specific claims. Plaintiff asserts a claim for a hostile work environment, retaliation, and constructive discharge. Defendants argue that Plaintiff cannot show that filing a police report is a protected activity and, therefore, cannot make a satisfactory prima facie showing of retaliation; and secondly, that even if Plaintiff establishes the requisite prima facie cases, Plaintiff cannot refute Defendants' proffered legitimate, nondiscriminatory rationale.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue of material fact regarding the existence of an essential element of the nonmoving party's case on which the nonmoving party would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 317 (1986); Martin v. Ohio Turnpike Comm'n, 968 F.2d 606 (6th Cir. 1992). However, in ruling on a motion, the "nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Fed. R. Civ. P. 56(e).
In order to defeat a motion for summary judgment the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). If the nonmoving party fails to set out specific facts which show there is a genuine issue for trial, summary judgment is appropriate. See Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d. 934, 937 (6th Cir. 1989); Adcock v. Firestone Tire & Rubber Co., 822 F.2d 623, 626 (6th Cir. 1987).
Mere allegations of a cause of action will not suffice to avoid summary judgment. The party with the burden of proof at trial is obligated to provide "concrete evidence supporting its claims and establishing the existence of a genuine issue of fact." Celotex at 322; First National Bank of Ariz. v. Cities Service Co., 391 U.S. 253 (1968). Further, the nonmoving party cannot defeat a properly supported motion for summary judgment by "simply arguing that it relies solely or in part upon credibility considerations." See Fogerty v. MGM Group Holdings Corp. Inc., 379 F.3d 348, 353 (6th Cir. 2004). Rather, the non-moving party "must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and... may not merely recite the incantation, 'Credibility,' and have a trial on the hope that a jury may disbelieve factually uncontested proof." Id. at 353-54. In sum, summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." See Daniels v. Woodside, 396 F.3d 730, 735 (6th Cir. 2005).
At the summary judgment stage, a plaintiff must demonstrate direct or circumstantial evidence to prevail on a Title VII discrimination claim. See Upshaw v. Ford Motor Co., 576 F.3d 576 (6th Cir. 2009). Direct evidence of discrimination is evidence, which if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer 's actions. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999); Terbovitz v. Fiscal Court of Adair County, 825 F.2d 111 (6th Cir. 1987); Smith v. Leggett Wire Co., 220 F.3d 752 (6th Cir. 2000) (only pertinent comments proximately made by company decision makers may constitute direct evidence of discrimination); Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003) ("direct evidence of ...