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Marter v. JE Johnson Contracting

April 30, 2010

MARC R. MARTER, PLAINTIFF,
v.
JE JOHNSON CONTRACTING, INC., DEFENDANT.



The opinion of the court was delivered by: Honorable Thomas L. Ludington

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 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 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.

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 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 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 "[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 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 ...


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