United States District Court, W.D. Michigan, Southern Division
T. NEFF UNITED STATES DISTRICT JUDGE
Catryina Brown brings this action against Defendant Michigan
State University Board of Trustees (“MSU”),
claiming race and sex discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq., as amended by the Civil Rights Act of 1991
(“Title VII”), and under the Elliot-Larsen Civil
Rights Act (“ELCRA”), Mich. Comp. Laws §
37.2101 et seq. Before the Court is Defendant's motion
for summary judgment. (ECF No. 21.) Plaintiff has filed a
response to the motion, and Defendant has filed a reply. For
the reasons that follow, Defendant's motion will be
of the Federal Rules of Civil Procedure requires the Court to
grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In evaluating a motion for summary
judgment the Court must look beyond the pleadings and assess
the proof to determine whether there is a genuine need for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). “[T]he district
court must construe the evidence and draw all reasonable
inferences in favor of the nonmoving party.” Martin
v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443
(6th Cir. 2009). When such a motion is filed by the
defendant, the “plaintiff must do more than rely merely
on the allegations of her pleadings or identify a
‘metaphysical doubt' or hypothetical
‘plausibility' based on a lack of evidence; [a
plaintiff] is obliged to come forward with ‘specific
facts, ' based on ‘discovery and disclosure
materials on file, and any affidavits[.]'”
Chappell v. City of Cleveland, 585 F.3d 901, 912
(6th Cir. 2009) (quoting Fed.R.Civ.P. 56(c));
Matsushita, 475 U.S. at 586-87). The proper inquiry
is whether the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); see
generally Street v. J.C. Bradford & Co., 886 F.2d
1472, 1476-80 (6th Cir. 1989).
attended Michigan State University from 2003 to 2010, during
which time she was a student custodian for the
university's Infrastructure, Planning and Facilities
(“IPF”) unit. In August 2011, Defendant hired
Plaintiff as a non-student, on-call custodial employee. In
January 2012, Plaintiff became a Temporary Custodian I, which
is a three-month position that is renewable for up to nine
months. Like other temporary employees, a Temporary Custodian
is evaluated at the end of every three months. At the end of
the nine-month period, the temporary employee is off work for
a week while they are reevaluated. (Fox-Elster Dep. 11, ECF
No. 22-6.) Defendant then decides whether to continue the
employment for another nine-months as a temporary employee.
If the employee's reviews are satisfactory, the temporary
employee can apply for a permanent position, if one is
available. (Id. at 12-13.)
Custodian I position requires a “casual knowledge of
cleaning methods, techniques and equipment.” (ECF No.
22-7.) The employee is required to perform “cleaning
and housekeeping activities” in an assigned area.
(Id.) During Plaintiffs first year of non-student
employment, from August 2011 to October 2012, Plaintiff was
assigned to work in buildings that followed the
“OS1” cleaning system. According to Brandon
Baswell, the Custodial Services Manager for the IPF unit, the
OS1 system uses a “job card protocol” that
“is very specific and detailed in terms of cleaning
chemicals, estimated time for each job, and workflow.”
(Baswell Aff ¶ 3, ECF No. 21-3.) It is “designed
to ensure consistency and equity in work flow[.]”
(Id. at ¶ 6.) Because the university
was in the process of adopting the OS1 system in 2012, not
all of its buildings used it. After October 2012, Plaintiff
worked in buildings that did not use the OS1 cleaning system.
performance evaluation of Plaintiff from August 2012 shows
that she fell below expectations in “quantity of work,
” and “attitude and cooperation.” (ECF No.
21-8.) Plaintiffs supervisor from that time period told
Baswell that the results of this evaluation were due to
Plaintiff s failure to follow the OS1 process in a timely
manner. (Baswell Dep. 15, ECF No. 21-7.) In contrast,
Plaintiff s performance evaluations from October 2012,
February 2013, May 2013, and February 2014, show that she met
or exceeded expectations in all categories. (ECF Nos. 22-8,
22-9, 22-10, 22-11.) However, most of these evaluations were
based on Plaintiffs performance in buildings that did not use
the OS1 system.
2014, Plaintiff obtained a permanent position as a Custodian
I, assigned to work in the Administration Building, which
uses the OS1 cleaning system. Per Defendant's contract
with the union, Plaintiffs position was subject to a
probationary period of 6 months or 1040 hours. At the
beginning of this period, Plaintiff complained about the OS1
system and the job cards. (Pl.'s Dep. 83, ECF No. 21-1.)
She determined that other employees “figured out a way
that made more sense than going by the job cards[.]”
(Id. at 84.) For instance, she used a cleaning agent
that was different from the one approved by the job card,
because that is what another employee told her to do.
(Id. at 78.) She complained to her supervisor that
others were not following the job cards. (Id. at
months later, in September 2014, the only other full-time
custodial employee in the Administrative Building became
injured, so Plaintiff took over as the building head.
“The building head is not a supervisor, but is in a
position of authority in that they provide oversight with
respect to the daily workflow and answer questions for other
staff.” (Ex. 14 to Pl.'s Resp., ECF No. 22-15,
PageID.469.) At the time, Sean Fox-Elster was a Service
Manager for Defendant; one of his responsibilities was to
determine how much staffing was needed for custodial work at
various buildings on campus. (Fox-Elster Dep. 14, ECF No.
21-5.) He was also responsible for making any necessary
changes to the OS1 job cards. (Id.)
December 2014, Fox-Elster went to the Administration Building
to meet with Plaintiff because her supervisor notified him of
some concerns that she had raised about the job cards.
(Id. at 22, 25.) At the meeting, Plaintiff told
Fox-Elster that another employee had complained that there
was too much work assigned on the job cards. (Pl.'s Dep.
90, ECF No. 21-1.) Plaintiff believed that some of the cards
were “wrong” and “confusing.”
(Id. at 91.) She told Fox-Elster that she had been
trained to use different cards that were created by another
employee, and Plaintiff followed those other cards.
(Id. at 91, 93, 95.) She tried to persuade
Fox-Elster that his job cards were insufficient.
(Id. at 95.) But he advised her to follow his cards
before they would discuss making changes to them. (Fox-Elster
Dep. 19, 23; Pl.'s Dep. 94.) On one occasion, after
Plaintiff argued with management and custodial staff about
the job cards, she left work in the middle of her shift.
(Pl.'s Dep. 96.)
probationary period was set to expire in January 2015. On
January 28, 2015, Defendant offered her an extension of that
period. Plaintiff indicated that she was not interested in
extending her probation. (Pl.'s Dep. 96.) She was told
that the alternative would be termination; nevertheless, she
refused to extend her probation. (Id.) Defendant
subsequently terminated her, effective February 3, 2015.
claims that Defendant terminated her on account of her race
and gender. Under Title VII, it is unlawful for an employer
to discharge an employee because of the employee's race
or sex. 42 U.S.C. § 2000e-2(a)(1). The ELCRA prohibits
similar conduct. Mich. Comp. Laws § 37.2202(1)(a).
Plaintiff may prove discrimination by direct evidence, or by
indirect evidence under the burden-shifting framework of
McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)
and Texas Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981). See Mitchell v. Toledo Hosp.,
964 F.2d 577, 582 (6th Cir. 1992) (noting that the
McDonnell Douglas/Burdine framework applies ...