United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis United States Magistrate Judge.
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (ECF NO. 28)
D. BORMAN UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.”
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.
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.
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
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.
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.
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.