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Davis v. U.S. Security Associates, Inc.

United States District Court, E.D. Michigan, Southern Division

November 16, 2016

DANNY DAVIS, Plaintiff,

          Stephanie Dawkins Davis United States Magistrate Judge.



         In this employment discrimination case, Plaintiff claims that Defendant U.S. Security Associates, Inc. (“U.S. Security”) violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., by terminating him in retaliation for his involvement in an internal investigation into sexual harassment charges against his supervisor and for his complaints to management and human resources about his supervisor's harassing conduct. Defendant now moves for summary judgment, arguing that Plaintiff's Complaint must be dismissed in its entirety because Plaintiff has created no genuine issue of material fact that there was a proceeding pending before the Equal Employment Opportunity Commission (“EEOC”) at the time of Plaintiff's termination and therefore Plaintiff has failed as a matter of law to state a prima facie case of retaliation under the “participation” clause of Title VII. Plaintiff responds that his claim is stated under the “opposition” clause of Title VII, not the participation clause, and that he has presented evidence of retaliation under that clause. The Court held a hearing on November 10, 2016, and DENIES Defendant's motion for the reasons stated on the record at that hearing and for the reasons that follow.

         I. BACKGROUND

         In May, 2009, Plaintiff began his employment with U.S. Security as an Account Manager for the Detroit region assigned to a single client, Consumers Energy. ECF No. 30, Pl.'s Resp. Ex. 1, Dec. 7, 2015 Deposition of Danny Davis 39:23-40:1, 43:16-44:7. U.S. Security is in the business of providing security guards to businesses and has approximately 160 customers in the Detroit region. ECF No. 40, Ex. 1, February 17, 2016 Deposition of William Edward Riley 15:24-16:1, 24:17-22. Plaintiff held the position of Account Manager for approximately three years at which time he was promoted by Will Riley, the Vice President and General Manager at the time, and appointed as District Manager of the Detroit vicinity on May 9, 2012. Davis Dep. 48:5-6; 49:15-50:9; Riley Dep. 53:6-9, 56:15-18; ECF No. 28, Def.'s Mot. Ex. 1, Employment Agreement dated May 9, 2012. Tom Firmingham, Plaintiff's Branch Manager at the time, also participated in the May 9, 2012, decision to promote Plaintiff to District Manager. Davis Dep. 50:14-20.

         On or about December 12, 2012, Plaintiff was again promoted by Mr. Riley and appointed a Regional Manager of the Detroit vicinity. Id. Ex. 2, December 12, 2012 Employment Agreement; Riley Dep. 58:15-19. Mr. Riley created the position of Regional Manager when he appointed Plaintiff. Riley Dep. 58:20-23. At the time of Plaintiff's promotion to Regional Manager, U.S. Security was suffering from significant dysfunction following a merger with another security company, Advance Security. Riley Dep. 60:5-61:6. Plaintiff held the title of Regional Manager until his termination in June, 2013. Davis Dep. 50:21-51:1.

         Shortly after Plaintiff was promoted to the position of District Manager in May, 2012, he was asked to participate in an investigation into complaints about Riley's workplace conduct and specifically about alleged “sexual improprieties of dating people in the office, improper comments, that type of thing.” Davis Dep. 85:21-86:9, 98:1-13. Plaintiff met with the investigator, whom he believed was a retired FBI agent, but had very little information to share with him about Will Riley because he had only been working closely with Riley for a short time and really had not observed much of Riley's behavior. Davis Dep. 98:1-17. Plaintiff knew that Riley was aware that Plaintiff met with the investigator because Riley and Plaintiff “talked openly about it” because Plaintiff “had nothing to say to the guy and nothing to hide from Will Riley.” Davis Dep. 142:12-143:17. Plaintiff never received any criticism from Riley regarding Plaintiff's participation in this first investigation. Id. at 144:13-14. Plaintiff testified that after the 2012 investigation, once he began working regularly in the Southfield office with Riley after his June, 2012, promotion to District Manager, he began going to lunch with Riley often, and noticed how Riley talked, “particularly to women, said a lot of off-color stuff, made a lot of off-color comments and some promises.” Id. at 99:2-6. Plaintiff noted that Riley would “become very agitated and angry if an employee said anything that agitated him. . . . [s]o . . . there was a history, people knew if you got on his wrong side, you were going to be unemployed.” Id. 99:6-21.

         In March, 2013, U.S. Security commissioned another investigation into a multitude of complaints from former and then current employees about numerous issues in the U.S. Security workplace. This investigation was conducted by Brett A. Rendeiro from the law firm of Varnum LLP. ECF No. 28, Pl.'s Mot. Ex. 4, May 20, 2013 Memorandum from Brett A. Rendeiro to L.J. Lutz, Vice-President, General Counsel and Secretary of U.S. Security Associates. Riley called Plaintiff in before Plaintiff was scheduled to meet with Rendeiro and “coached [Plaintiff] on what the expectations were and what [Plaintiff] should say.” Davis Dep. 100:9-11. Plaintiff told Riley he didn't know anything and was not going to say anything. Id. 100:11-13. Although the employees were instructed not to discuss their interviews with other employees, after Plaintiff interviewed with Rendeiro, Riley called Plaintiff in and asked him what he said and what questions Rendeiro had asked. Id. 100:23-25.

         The Rendeiro Report investigated numerous complaints from both former and then current employees regarding a host of issues from favoritism to inappropriate sexual comments and conduct toward women. In some instances the complaints were found to be substantiated but in most cases Rendeiro was unable to substantiate the allegations. Included among the complaints he investigated were several that were critical of Plaintiff's job performance, which Rendeiro found to be substantiated. Rendeiro Report 13-15. The Report generally describes complaints of a largely dysfunctional workplace with several employees filing claims against U.S. Security for improper treatment and wrongful termination. Id.

         Shortly after his first interview with Rendeiro in March, Plaintiff contacted Rendeiro, probably in “early April or late March, ” and asked for a second interview because Plaintiff felt he had not been forthcoming in the initial interview out of fear of retaliation from Riley and he “did not feel comfortable not being completely forthcoming.” Davis Dep. 129:15-130:22; Rendeiro Report p. 23 n. 6. In the second interview, Plaintiff told Rendeiro that Riley in fact had made comments of a sexual nature to certain employees although Plaintiff had expressly denied such knowledge in the first interview with Rendeiro. Rendeiro Report 23-24. Rendeiro reports that Plaintiff “admitted that he requested the second interview after Will Riley started to question the performance of the branch, ” and Plaintiff “fear[ed] losing his job.” Id. at 23 n. 6. Plaintiff did not recall telling Rendeiro in the second interview that his job performance had come under scrutiny. Davis Dep. 130:17-131:10. Plaintiff believed that there was going to be a third follow-up interview with Rendeiro, but Rendeiro never contacted Plaintiff to conduct that third interview. Davis Dep. 131:20-22. Rendeiro concludes in his Report that Plaintiff's allegations regarding Riley's allegedly improper sexual comments “are not capable of being substantiated.” Rendeiro Report 23. In support of his conclusion, Rendeiro states that Riley denies making such comments, Davis previously in his first interview denied that Riley made such comments and that Plaintiff had waited to come forward with these allegations until after Riley started to question the branch's performance. Id. at 23-24.

         Following the second interview with Rendeiro, and as scrutiny and criticism of his job performance by Riley escalated, Plaintiff emailed Rendeiro and also copied Rendeiro on emails that he sent to the U.S. Security legal department, management, and human resource department complaining of Riley's sexually harassing conduct and favoritism in the workplace. Davis Dep. 131:24-132:21. In one email dated May 23, 2013, to Chuck Schneider, CEO of U.S. Security, Plaintiff informed Schneider that he was “very concerned about recent events, conduct, retaliation and a clear lack of ethics and integrity that [he] witness[ed] daily and [has] been helpless to repair.” ECF No. 30, Pl.'s Resp. Ex. 2, May 23, 2013 email from Davis to Chuck. Plaintiff states in his email to Mr. Schneider that there was an ongoing investigation of his Detroit region that “initially seemed to center on [Riley's] inappropriate conduct regarding female employees, dual standards and favoritism.” Id. at 1. Plaintiff stated in the email that he had first hand knowledge that each of these complaints about Riley was true. Plaintiff also stated in the email that he was “appalled” that Rendeiro questioned him about his own conduct and job performance. Id. Plaintiff explains in the email to Schneider that he was frustrated that his reports of sexual harassment by Riley to legal and human resources were being ignored, as well as by the failure of legal and HR to respond to similar allegations about Riley's sexually harassing conduct by U.S. Security's Quality Manager, Brandea Manley. Id. at 2. The email contains numerous complaints about Riley's performance as a manager, in addition to Plaintiff's complaints related to Riley's alleged sexual harassment of female employees. Id.

         Effective June 21, 2013, U.S. Security terminated Plaintiff's employment. Def.'s Mot. Ex. 5. Riley testified that it was his decision to terminate Plaintiff for “poor performance, had not met expectations.” Riley Dep. 93:11-20. Riley states that the branch that Plaintiff had been hired to restore was still “dysfunctional, ” employees were complaining about Plaintiff and about Brandea Manley, profitability was low, overtime was high, clients were leaving and they were “losing money left and right.” Riley Dep. 93:24-94:8. When asked to list the complaints about Plaintiff, Riley testified that he had “inklings of complaints that [Plaintiff] shared with him” that one other employee was complaining about Plaintiff; and Riley did not even know the substance of the complaint and never bothered to determine whether there was any substance to that employee's complaint. Riley Dep. 95:1-24. Riley testified that he was never informed of the findings that resulted from Rendeiro's investigation. Riley Dep. 92:21-93:9. Riley did acquire knowledge at some point that Plaintiff gave information during the Rendeiro investigation supporting Ms. Manley's claim that Riley had sexually harassed her. Riley Dep. 90:1-13.

         Plaintiff admits that he never received any direct threats of retaliation for his participation in either the 2012 or the 2013 investigation but he knew from “things [he] had seen since he worked there, ” such as “watch[ing] Mr. Riley fire people quickly . . . how things would work out if [he] spoke up about anything.” Davis Dep. 88:15-25. He was never directly told that he would be fired if he cooperated in the investigation but concluded from “the extra scrutiny that came about after [he] spoke to Mr. Rendeiro and Mr. Riley stopped speaking to [him], ” that his job was jeopardy. Davis Dep. 89:1-12.

         II. ...

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